Opinion
CIVIL ACTION 98-0126-CB-L.
February 5, 2001.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983 (Doc. 1), supported by an affidavit (Doc. 2), alleging that defendants, Joe S. Hopper, former Commissioner of the Alabama Department of Corrections; Willie Johnson, Warden of Fountain Correctional Facility and Fob James, former Governor of the State of Alabama, violated his Fifth, Sixth and Fourteenth Amendment rights. Specifically the plaintiff alleges that his constitutional rights were violated through the application of Department of Corrections Administrative Regulation #403, which sets forth the disciplinary hearing procedures for major rule violations by inmates in the Alabama prison system (Doc. 15, Exhibit 3).
Plaintiff seeks a declaratory judgment that Regulation #403 is unconstitutional, an injunction of the application of the Regulation, statewide restoration of "good time" credits for inmates, including plaintiff, and statewide reinstatement of inmates to correctional incentive time (CIT) status, including plaintiff (Doc. 1).
Alabama Correctional Incentive Time Act (ACITA), codified at Ala. Code § 14-9-41 (1975), contains language delineating which inmates are eligible to receive correctional incentive time, also known as "good time."
This action was referred to the undersigned Magistrate Judge on January 5, 2000, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the Court on defendant's motion for summary judgment (Doc. 15, 30).
Defendant's filed a special report (Doc. 15) and answer (Doc. 21) which the Court converted into a motion for summary judgment on November 16, 2000 (Doc. 30). Plaintiff was given notice that the motion for summary judgment would be taken under submission, was advised of the pertinent summary judgment law and of the consequences of a summary judgment motion, and was provided an opportunity to respond to the summary judgment motion. In response, plaintiff filed a Motion in Response to Court Order (Doc. 31), wherein he informed the Court that he wished to continue the litigation of this case.
Upon consideration, the undersigned recommends that plaintiff's claims be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. This dismissal should be without prejudice to plaintiff refiling this claim at such time as he can demonstrate that he has achieved the requisite relief in habeas, i.e. that his disciplinary conviction for escape has been nullified or reversed.
I. COMPLAINT
Plaintiff alleges that regulation #403, which outlines the procedure to be used during a disciplinary hearing for a major offense, is unconstitutional and therefore his due process rights were violated when this procedure was used in his disciplinary hearing in which he plead guilty to escape. Specifically, he alleges that the regulation is unconstitutional as written and applied to him because it does not: 1) require that inmates be notified that they could be subject to criminal prosecution in state court for violations of state law arising from the same circumstance; 2) require that the inmate be notified that he has a right to remain silent and that any statement he makes could be used against him; 3) require that the inmate be told that a conviction in the disciplinary hearing subjects the inmate to disciplinary sanctions from which he has no right of appeal; 4) require counsel at the disciplinary hearing; 5) give adequate notice of the charges against an inmate (because the regulation requires only that the notice include the inmate's name and the number of the rule violated). (Doc. 1, Doc. 2).
Also, in his objection to the special report (Doc. 16), plaintiff summarily alleges that defendants violated § 14-3-59 Ala. Code (1975), which states as follows:
14-3-59. Posting of regulations and code provisions on escapes. Such of the regulations as are provided by this title, with all others hereafter adopted by the Legislature or by the Board of Corrections, as it may be necessary that convicts should know, and the sections of this code relative to escapes by convicts, must be printed so as to be conveniently read and set up in each workshop and cell in a conspicuous place.
As state above, plaintiff seeks a declaratory judgment that regulation #403 is unconstitutional and an injunction, presumably, of any further proceedings under this regulation. The plaintiff also asks this court to restore good-time credits and reinstate to correctional incentive time (CIT) status inmates, including himself, who were deprived of these benefits as a result of a proceeding under Regulation #403. (Doc. 1, Doc. 16).
II. BACKGROUND
On August 8, 1997, the plaintiff was charged with a violation of Department of Correction Rule 47, specifically escape without force. The charge alleges that on August 7, 1997, at approximately 11:45 a.m., the plaintiff, while on work release from the Atmore Community Based Facility, left his job at a diesel station in Atmore, Alabama with the intent of not returning. The charge further alleges that the plaintiff was recaptured on August 7, 1997, at approximately 11:30 p.m. (Doc. 15, Exhibit 3).
He was served written notice on August 8, 1997, that he was charged with a violation of Rule #47, escape without force. The notice stated the date, time and circumstances of the escape and recapture, and that a hearing on the violation would be held on August 11, 1997 at 11:15 a.m.
The hearing was subsequently held before Officer James T. Sanborn. Plaintiff plead guilty and did not have witnesses testify. The hearing officer found the plaintiff guilty based on plaintiff's plea of guilty. Officer Sanborn further recommended the "[l]oss of all good time, if inmate has any; [r]emoval from Atmore Work Release Program; to be reviewed for increase in custody; [and] [r]emoval from CIT status." This recommendation was approved by the Warden. (Doc. 15, Exhibit 3).
The plaintiff states that he was then prosecuted in Escambia County for the same offense. Plaintiff states that on advice of counsel he plead guilty to third degree escape and was sentenced to fifteen years to serve concurrent with his sentence from Lee County, Alabama. (Doc. 1; Doc. 2).
Plaintiff was sentenced on January 18, 1996 to a term of twelve years for the crime of Forgery II from Lee County, Alabama. (Doc. 1; Doc. 15, Exhibit 3, Initial Escape Report).
III. CONCLUSIONS OF LAW
The federal in forma pauperis statute provides in relevant part that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that — (A) the allegation of poverty is untrue; or (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). In sum, the statute mandates dismissal of frivolous complaints or complaints which fail to state a claim upon which relief may be granted brought by litigants proceeding in forma pauperis. See, e.g., Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999).
A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-1832 (1989); see also Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist. A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and citations omitted); see also Neitzke, supra, 490 U.S. at 325, 109 S.Ct. at 1832 ("`[F]rivolous,' when applied to a complaint, embraces not only the inarguable legal conclusions, but also the fanciful factual allegations."). The frivolousness determination is a discretionary one which is "entrusted to the discretion of the [district] court entertaining the in forma pauperis petition." Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1734, (1992).
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
The chief premise underlying plaintiff's request for relief is that regulation 403 is unconstitutional and therefore the judgment and punishment imposed on him as a result of the proceeding under regulation 403 is unconstitutional. The plaintiff request this court to declare the regulation unconstitutional, enjoin its use and then restore to every inmate prosecuted under regulation 403 their "good time credits" and their CIT status so that they presumably can continue to accrue good time. However, under the circumstances of this case, neither a declaration that the regulation is unconstitutional or the restoration of good time credits or status is cognizable in a § 1983 action.
Regulation 403 is a Department of Corrections administrative regulation which outlines the procedures to be used in a disciplinary hearing for a major rule violation. The state has attached the regulation as an exhibit to its special report. (Doc. 15, Exhibit 3).
An inmate cannot challenge the fact or duration of his confinement or recover his good time credits in a civil rights action pursuant to 42 U.S.C. § 1983, even though such a claim may come within the literal terms of § 1983. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841 (1973). In Preiser, the inmates brought an action under § 1983 claiming that their good time credits were unconstitutionally taken away and sought their restoration. The Supreme Court unequivocally stated that restoration of good time credits was not relief which could be granted in a § 1983 action. Id. This is exactly the claim that plaintiff makes in this case, albeit by framing the relief as a request for statewide restoration of good time.
Further, an inmate cannot bring a § 1983 action, based on a conviction, if a judgment in his favor would "necessarily imply" the invalidity of his conviction or sentence unless he can demonstrate that the conviction or sentence has previously been invalidated." Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372-2373 (1994). The Court in Heck primarily addressed the issue of whether the request for relief in the form of damages, as opposed to injunctive relief, provided a basis for a § 1983 action. Id. The plaintiff in this case has not requested any type of damages, however the Heck opinion is instructive in that it reaffirmed its holding in Preiser and emphasized that the plaintiff must first have his conviction invalidated in state court before he is able to seek any other relief in a § 1983 action. Heck, 512 U.S. at 481-487, 114 S.Ct. at 2369-2372. In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584 (1997), the Supreme Court held that "conviction," as contemplated in Heck, includes a decision in a prison disciplinary proceeding that would affect an inmate's sentence, including the loss of good time credits. In sum, plaintiff's claim requesting restoration of his good time credits and status is simply not cognizable under § 1983 until he has had his disciplinary conviction invalidated.
Moreover, plaintiff's request to have regulation 403 declared unconstitutional, even standing alone, could not form the basis of a § 1983 claim under the circumstances of this case. As the Court in Heck explained, an action cannot be brought under § 1983 if a judgment in the plaintiff's favor would "necessarily imply" that the underlying conviction is invalid. Heck, 512 U.S. at 487, 114 S.Ct. at 2372. Any declaration that regulation 403 is facially unconstitutional based on the grounds asserted by the plaintiff, i.e., fails to require that inmates be notified that they could be subject to state court criminal prosecution from the same circumstance; fails to require that inmates be told they have a right to remain silent and any statements made can be used against them does not provide inmates the right of appeal; denies counsel at the disciplinary hearing; and fails to require that adequate notice of the charges be given to an inmate, would "necessarily imply" that plaintiff's conviction for escape at the disciplinary hearing conducted pursuant to Regulation 403 was unconstitutional and thus invalid. An invalidation of plaintiff's conviction would necessarily result in the restoration of good time, a judgment which cannot be render by this court in an action under § 1983.
See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), for a discussion of what rights must be afforded an inmate in a disciplinary proceeding. "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id.
The Supreme Court, in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551 (1976) held that prison disciplinary proceedings are not criminal proceedings. Id. at 316, 96 S.Ct. 1551. Miranda, which addresses the warnings that must be given to a person in custody, has not been extended to prison disciplinary proceedings. These proceedings are civil, not criminal, and do not implicate the privilege against self-incrimination. See Tinch v. Henderson, 430 F. Supp. 964, 968-69 (M.D.Tenn. 1977); Rhodes v. Henman, 946 F.2d 901 (10th Cir. 1991). Therefore, failure to give Miranda warnings is not cognizable under 42 U.S.C. § 1983. Thorton v. Buchmann, 392 F.2d 870, 874 (7th Cir. 1968); Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976); Johnson v. Carroll, 694 F. Supp. 500, 504 (N.D.Ill. 1988). In the Eleventh Circuit the failure "to follow Miranda procedures triggers the prophylactic protection of the exclusion of the evidence, but does not violate any substantive Fifth Amendment right such that a cause of action for money damages under § 1983 is created." Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999). Plaintiff's claim that he should have been given the Miranda warnings in the prison disciplinary proceedings has no basis in law and is frivolous.
In a factually similar case, Clarke v. Stalder, 154 F.3d 186 (5th Cir. 1998) cert. denied, 525 U.S. 1151, 119 S.Ct. 1052 (1999), the Fifth Circuit held that "the type of prospective injunctive relief that Clarke requests in this case — a facial declaration of the unconstitutionality of the `no threats of legal redress' portion of Rule 3 — is so intertwined with his request for damages and reinstatement of his lost good-time credits that a favorable ruling on the former would `necessarily imply' the invalidity of his loss of good-time credits." Clarke, 154 F.3d at 189, citing Edwards, 520 U.S. at 645, 117 S.Ct. at 1587 (1997) (the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the judgment; and thus, not cognizable under § 1983 until the relevant conviction had been reversed, expunged or otherwise found invalid). The Court in Clarke reasoned that if injunctive relief was granted upon a finding that the challenged Rule 3 was unconstitutional, it would bind state courts in subsequent actions (citations omitted) including an action under habeas corpus (citations omitted). Clarke, 154 F.3d at 189-190. Therefore, since Clarke's disciplinary sanction resulted from a violation of a portion of Rule 3, a determination that Rule 3 was unconstitutional would be binding on the State in a subsequent action. Thus, a state court in a habeas proceeding would be bound to conclude that Clarke had been convicted of violating an unconstitutional rule, which is the kind of "obvious defect" that results in a nullification of the conviction. (citations omitted). Id. The same is true in this case. Plaintiff's claim for a declaration that regulation 403 is unconstitutional it inextricably intertwined with his request for restoration of good time credits and status and thus a finding that regulation 403 in unconstitutional would necessarily result in a nullification of his disciplinary conviction.
Clarke alleged that a portion of Rule 3, wherein a prisoner could not threaten a prison employee "with legal redress during a confrontational situation," violated his First Amendment right. Clarke, 154 F.3d at 187.
In Edwards, plaintiff sought declaratory relief and money damages based upon a Ninth Circuit principle that a claim seeking damages for using the wrong procedure, although reaching the right result, was cognizable under § 1983. The Supreme Court found this incorrect because the principle failed to consider the potential situation, as "clearly envisioned" by Heck, 512 U.S. at 482-483, 114 S.Ct. at 2370, wherein the challenge to the procedure could be such as to "necessarily imply" the invalidity of the result reached, the loss of good-time credits. Heck, 512 U.S. at 486 n. 6, 114 S.Ct. at 2373 n. 6. Edwards, 520 U.S. at 645, 117 S.Ct. 1588.
Therefore, since the record does not indicate that the plaintiff has successfully challenged these constitutional issues in a habeas corpus proceeding, plaintiff's claims requesting this court to declare regulation 403 unconstitutional and enjoin the Department of Corrections from proceeding under regulation 403 are fail to state a claim which is cognizable under § 1983. See also, Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995) ("[D]eclaratory or injunctive relief claims which are in the nature of habeas corpus claims — i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release — are simply not cognizable under § 1983.").
In the plaintiff's objection to the special report, plaintiff also claims that defendants violated § 14-3-59 Ala. Code (1975) by failing to post Regulation #403. § 14-3-59 states as follows:
14-3-59. Posting of regulations and code provisions on escapes. Such of the regulations as are provided by this title, with all others hereafter adopted by the Legislature or by the Board of Corrections, as it may be necessary that convicts should know, and the sections of this code relative to escapes by convicts, must be printed so as to be conveniently read and set up in each workshop and cell in a conspicuous place.
However, since plaintiff's 5th, 6th and 14th Amendment due process claims are not cognizable in this § 1983 action, this court will not consider plaintiff's additional argument that failure to post the regulation violated state law. "Supplemental jurisdiction permits parties to append state claims in federal cases, provided that the state-law claims `form part of the same case or controversy' as the federal claims." Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999) ( citing 28 U.S.C. § 1367(a); see Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (recognizing that 28 U.S.C. § 1367 codified the doctrine of pendent jurisdiction derived from United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966)). Further, the "district court has discretion to dismiss state-law claims when `all claims over which it has original jurisdiction' have been dismissed." See id.; 28 U.S.C. § 1367(c)(3). Therefore, because plaintiff's federal claims are due to be dismissed for failure to state a claim, this court will not exercise supplemental jurisdiction over plaintiff's state law claim.
III. CONCLUSION
Upon consideration, the undersigned recommends that plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed for failure to state a claim upon which relief can be granted. Furthermore, it is recommended that the court decline to exercise supplemental jurisdiction over plaintiff's state law claim and dismiss said claim.