Opinion
3:23-CV-00253-DPM-BBM
05-06-2024
LAWRENCE J. SWIFT ADC #111527 PLAINTIFF v. DOE, ADC, Grimes Unit and Staff; and CLINT BAKER, Captain, Grimes Unit, ADC DEFENDANTS
RECOMMENDED DISPOSITION
The following Recommended Disposition has been sent to United States District Judge D.P. Marshall Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommended Disposition. If you do not file objections, Judge Marshall may adopt this Recommended Disposition without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.
I. INTRODUCTION
On December 18, 2023, Plaintiff Lawrence J. Swift (“Swift”), a prisoner in the Grimes Unit of the Arkansas Division of Correction (“ADC”), filed a pro se Complaint pursuant to 42 U.S.C. § 1983, alleging Doe Defendants violated his constitutional rights. (Doc. 1). In his subsequent Amended Complaint, Swift named Captain Clint Baker (“Captain Baker”) as the sole Defendant. (Doc. 7). Swift's primary complaint is that Captain Baker charged him with a “major” disciplinary, without adequate support for doing so. (Doc. 1 at 2-4; Doc. 7 at 4-6).
Before Swift may proceed with this action, the Court must screen his claims in accordance with the Prison Litigation Reform Act (“PLRA”). 28 U.S.C. § 1915A(a). Because Swift's Amended Complaint appears to supplement the original Complaint, rather than supplant it, the Court will read the two Complaints together in conducting its screening. Kiir v. N.D. Pub. Health, 651 Fed.Appx. 567, 568 (8th Cir. 2016) (unpublished) (citing FED. R. CIV. P. 8(e); Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999)). The Court also considers the relevant disciplinary records (Doc. 12-1 at 4-7), which are necessary embraced by the pleadings. Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012).
The PLRA requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or a portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b). When making this determination, the Court must accept the truth of the factual allegations contained in the complaint, and it may consider the documents attached to the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).
II. ALLEGATIONS
According to Swift, in August 2023, his sister contacted him to let him know that his Facebook page had been hacked, and someone was posing as him to request money from his family and friends. (Doc. 1 at 2; Doc. 7 at 6). On August 7, 2023, Swift emailed his “ol' lady,” Tiffany Edmonson (“Edmonson”), from his institutional email to let her know about the Facebook scam and that it was not him requesting money. (Doc. 1 at 3; Doc. 7 at 5). On that same day, he spoke with Deputy Warden Harris about the issue and told her he “don't need no problems” because he had a parole hearing coming up. (Doc. 1 at 2, 4).
At his August 15, 2023 parole hearing, the parole board told Swift that, if he “could stay disciplinary free for one year straight, [] they would let [him] go back home to [his] family.” (Doc. 1 at 3). At the time, Swift had been disciplinary free since April 2023 and was on track to be one-year disciplinary free in April 2024. Id.
On December 5, 2023, Captain Baker wrote a disciplinary, charging Swift with “possession/introduction/use of cellphone or any cell phone component (e.g., sims card, charger, battery, etc.)”-a criminal offense and a “major” disciplinary. (Doc. 1 at 2-3; Doc. 7 at 4). The charge was based on an “Investigation report” received by Captain Baker, which found that an inmate in the ADC's “Brickeys” Unit had been using a cellphone to communicate with other inmates through Facebook messenger, including Swift. (Doc. 1 at 2, 4; Doc. 7 at 4-5; Doc. 12-1 at 5). Captain Baker noted that all inmates involved “were in possession of a cell phone.” (Doc. 12-1 at 5).
Swift was served with the disciplinary on December 12, 2023, without being counseled about the veracity of the charges or the underlying facts. (Doc. 1 at 4). After a disciplinary hearing, Swift was found guilty of possessing a cellphone along with two other charges. (Doc. 12-1 at 5-7). As a result, he (1) lost his telephone privileges for 365 days; (2) received a reduction to Class 4 status; and (3) forfeited 365 days of good time credits. (Doc. 1 at 3; Doc. 7 at 5; Doc. 12-1 at 6). Moreover, Swift lost his ability to “make parole” because he will not be “disciplinary free for one year straight” when he next appears before the parole board in August 2024. (Doc. 1 at 3). Swift's appeal of the disciplinary was denied. (Doc. 12-1 at 3).
Swift also received 30 days in punitive isolation and a 60-day restriction on his commissary and visitation privileges. (Doc. 12-1 at 6). He was also penalized with one-year non-contact visitation. Id. at 4. However, Swift does not allege that these conditions violated his constitutional rights in his Complaint or Amended Complaint. (See Docs. 1, 7). Out of abundance of caution, these potential claims are addressed in Section III.D. below.
Swift states that he does not know any inmates in the Brickeys Unit and that, pursuant to the ADC disciplinary policy, Captain Baker should have consulted with him prior to bringing the major disciplinary charge. (Doc. 1 at 4). If he had, Captain Baker would know that Swift's Facebook had been hacked and could have confirmed that by viewing Swift's August 7, 2023 email to Edmonson and speaking with Deputy Warden Harris. (Doc. 1 at 4; Doc. 7 at 5). Although Swift maintains his innocence, he also alleges that Captain Baker violated the ADC disciplinary policy by charging him with possession of a cell phone; at most, Swift believes he should have been charged with the lesser offense of using “internet social media.” (Doc. 7 at 4-5).
Swift alleges that, as a result of losing his telephone privileges for one year, he has been unable to talk to or visit with his family and suffers emotional damage. (Doc. 7 at 4). He claims this is a violation of his First Amendment rights. Id.
Swift mailed his original Complaint in this action on December 14, 2023, and it was received and filed by the Clerk on December 18, 2023. (Doc. 1 at 1, 5). Swift alleges that, after the file-marked Complaint was mailed to him, Captain Baker “got the message” that Swift had filed the lawsuit and retaliated against Swift. (Doc. 7 at 5). Specifically, Swift claims that Captain Baker confiscated his legal mail, said it tested positive for synthetic cannabinoids, filed another unsubstantiated disciplinary against him, and locked him in administrative segregation. Id.
Swift sues Captain Baker in his individual and official capacities. Id. at 2. He seeks compensatory and punitive damages, and injunctive and declaratory relief. Id. at 7.
III. DISCUSSION
To survive pre-service screening under the PLRA, a “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[L]abels and conclusions,” a “formulaic recitation of the elements of a cause of action,” and “naked assertions devoid of further factual enhancement” are insufficient to plead a plausible claim. Id. Liberally construing Swift's Complaint and Amended Complaint, Swift raises Fourteenth Amendment due process, First Amendment, and retaliation claims against Captain Baker. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (“A pro se complaint must be liberally construed and pro se litigants are held to a lesser pleading standard than other parties.”) (cleaned up; citations omitted).
A. Fourteenth Amendment Due Process
For his Fourteenth Amendment due process claim, Swift alleges that Captain Baker wrongfully accused him of possessing a cellphone, which resulted in a 365-day loss of telephone privileges, a deduction in his inmate classification, forfeiture of 365 days of good time credit, and his inability to make parole in August 2024. A prisoner may maintain a due process challenge to a prison disciplinary proceeding only if he is deemed to have a liberty interest at stake. Sandin v. Conner, 515 U.S. 472, 484 (1995); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).
Swift's primary due process argument is that Captain Baker failed to follow ADC policy before finding him guilty of a disciplinary violation. However, “there is no federal constitutional liberty interest in having.. .prison officials follow prison regulations.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). Swift also does not have a due process liberty interest in his prisoner classification or parole. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (prisoner classification); Blair-Bey v. Iowa, 732 Fed.Appx. 488 (8th Cir. 2018) (unpublished) (prisoner classification); Hamilton v. Brownlee, 237 Fed.Appx. 114, 115 (8th Cir. 2007) (unpublished) (parole).
Swift's 365-day loss of telephone privileges is a closer call. Federal courts in this Circuit, however, have repeatedly held that shorter restrictions on telephone privileges do not implicate a liberty interest. See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642 n.4 (8th Cir. 1996) (thirty-day restriction); Estes v. Mothershed, No. 4:23-CV-00441-JM-JJV, 2023 WL 3767279, at *2 (E.D. Ark. May 15, 2023) (sixty-day restriction), report and recommendation adopted, 2023 WL 3762730 (E.D. Ark. June 1, 2023), appeal dismissed, No. 23-2846, 2023 WL 9600859 (8th Cir. Oct. 20, 2023); Fisher v. Skinner, No. 4:22-CV-00386-LPR-ERE, 2022 WL 2061981, at *1 (E.D. Ark. May 19, 2022) (sixty-day restriction), report and recommendation adopted, 2022 WL 2056314 (E.D. Ark. June 7, 2022), aff'd, No. 22-2841, 2022 WL 18862032 (8th Cir. Oct. 18, 2022). And federal district courts in other circuits have held that a 365-day restriction on telephone privileges does not implicate a liberty interest. See, e.g., Joyner v. Ozmint, No. 3:09-CV-2524-DCN-JRM, 2010 WL 3783167, at *4 (D.S.C. Sept. 22, 2010) (one-year restriction), aff'd, 425 Fed.Appx. 223 (4th Cir. 2011); Reber v. Martin, No. 1:10-CV-00141-RC-ESH, 2010 WL 7198256, at *2 (E.D. Tex. May 11, 2010) (365-day restriction), report and recommendation adopted, 2011 WL 3511487 (E.D. Tex. Aug. 10, 2011).
Furthermore, a liberty interest may only be established by the Constitution itself, “or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). As a prisoner, Swift does not have a constitutional right to unlimited telephone access, and the ADC has no constitutional obligation to provide Swift with telephone service-more on that later. Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989); Holloway v. Magness, 666 F.3d 1076, 1079 (8th Cir. 2012). And, other than the ADC disciplinary policy, which does not establish a liberty interest, Phillips, 320 F.3d at 847, Swift has identified no other state law or policy that would allegedly give prisoners a liberty interest in prisoner telephone access.
Finally, to the extent that Swift may have a liberty interest in his 365 days of good time credit, that claim is Heck-barred. Portley-El v. Brill, 288 F.3d 1063, 1067 (8th Cir. 2002) (discussing Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 643-44 (1997)). Because Swift has no identifiable liberty interest in his classification, parole eligibility, or telephone access, and his good-time credit claim is Heck-barred, it is recommended that Swift's due process claims be dismissed without prejudice for failure to state a claim.
The “Due Process Clause itself does not create a liberty interest in credit for good behavior.” Sandin, 515 U.S. at 477. Instead, a court must look to the specific state statute in question to determine whether a liberty interest in good time credits has been created by the state. Id. The Arkansas Supreme Court has determined that no such liberty interest was created by the Arkansas parole statutes. McKinnon v. Norris, 231 S.W.3d 725, 729-30 (Ark. 2006). The Arkansas courts' interpretation of federal constitutional law is not binding on federal courts. Baker v. Carr, 369 U.S. 186, 211 (1962). However, courts in this district tend to agree. See, e.g., Anderson v. Payne, No. 4:21-CV-00563-BRW-PSH, 2021 WL 4143731, at *3 (E.D. Ark. Aug. 26, 2021), report and recommendation adopted, 2021 WL 4134372 (E.D. Ark. Sept. 10, 2021); Rodriguez v. Kelley, No. 5:19-CV-00077-KGB-JTK, 2019 WL 8403589, at *3 (E.D. Ark. June 20, 2019), report and recommendation adopted, 2020 WL 1845230 (E.D. Ark. Apr. 10, 2020); Crockett v. Kelley, No. 5:18-CV-00210-JM-JTR, 2019 WL 1590947, at *3 (E.D. Ark. Mar. 14, 2019), report and recommendation adopted, 2019 WL 1590588 (E.D. Ark. Apr. 12, 2019); Day v. Kelley, No. 5:15-CV-00273- KGB-BD, 2015 WL 10744199, at *3 (E.D. Ark. Nov. 16, 2015), report and recommendation adopted, 2016 WL 1718377 (E.D. Ark. Apr. 28, 2016).
B. First Amendment Right-to-Association Claim
Swift next alleges that the 365-day limitation on his telephone privileges infringes on his First Amendment rights because he is unable to talk with his family. (Doc. 7 at 4). It is unclear whether Swift is proceeding on a theory that his First Amendment right-to-association or his First Amendment free-speech right has been infringed. Regardless, Swift fails to state a plausible claim for relief under the First Amendment.
This conclusion is guided by the following principles. First, as a prisoner, Swift has forfeited “[m]any of the liberties and privileges enjoyed by other citizens.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003). In particular, “freedom of association is among the rights least compatible with incarceration.. .[and] [s]ome curtailment of that freedom must be expected in the prison context.” Id. Second, as previously discussed, prisoners do not have an unlimited right to telephone access. Benzel, 869 F.2d at 1108. In fact, prisons are under no obligation to provide telephone services to prisoners. Holloway, 666 F.3d at 1079. Finally, to the extent the individual restriction of Swift's rights may be subject to the four-factor Turner test, which applies to a prison's regulations, Swift's threadbare allegations lack any assertion that his alternative means of communication-such as his institutional email account or mail-were restricted. Id. at 1780. And the disciplinary records show that his in-person visitation rights were only restricted for sixty days. (Doc. 12-1 at 6). These facts fail to show “a significant infringement of [Swift's] right to communicate with the outside world.” Holloway, 666 F.3d at 1079.
Accordingly, it is recommended that Swift's First Amendment claims related to the 365-day telephone restriction be dismissed without prejudice for failure to state a claim.
C. Unexhausted Retaliation Claim
In his Amended Complaint, Swift alleges that Captain Baker retaliated against him after he initiated this § 1983 action. (Doc. 7 at 5). This claim should be dismissed based on Swift's failure to exhaust administrative remedies.
Although failure to exhaust is an affirmative defense, it is appropriate for the Court to dismiss unexhausted claims upon screening when it is apparent from the face of the Complaint that the plaintiff failed to exhaust his administrative remedies. See Jones v. Bock, 549 U.S. 199, 214-15 (2007); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (“Under Jones, [] a court can dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust.”). Under well-established Eighth Circuit case law, a plaintiff must exhaust his administrative remedies before initiating a § 1983 action. Johnson v. Jones, 340 F.3d 624, 626-28 (8th Cir. 2003) (“Under the plain language of section 1997e(a), an inmate must exhaust administrative remedies before filing suit in federal court...If exhaustion was not completed at the time of filing, dismissal is mandatory.”) (emphasis in original). Because Swift could not have exhausted his post-Complaint retaliation claims before initiating this § 1983 action, it is recommended that those claims be dismissed without prejudice for failure to state a claim.
On April 22, 2024, Swift filed a lawsuit alleging these retaliation claims against Captain Baker and others. See Swift v. Dunagan et al., No. 3:24-CV-00068-JM (E.D. Ark.).
D. New Claims and Allegations in Swift's “Affidavit of Truth”
In addition to his Complaint and Amended Complaint, on April 19, 2024, Swift filed an “Affidavit of Truth.” (Doc. 12-1). In the document, Swift alleges that: (1) ADC Director Dexter Payne (“Director Payne”), along with Warden T. Hurst, were “involved” in the constitutional violations by “‘NOT' overseeing the actions of his staff”; (2) Notary Public Lieutenant H. Dunagan (“Lieutenant Dunagan”), who Swift deems “untrustworthy,” failed to provide him a list of alternative notaries that he could have used; and (3) Major Haynes failed to properly investigate Captain Baker's and Lieutenant Dunagan's actions. Id. at 1. He also complains that he was deprived of family visitation and commissary privileges for 60 days and “contact” visitation for one year, which caused him “mental anguish, stress, and duress.” Id. He claims that “all stated person[nel] are operating in their official capacity.” Id. To the extent this unverified document may be read as a supplemental complaint, it fails to state a claim for relief.
First, any “official capacity” claim fails because Swift does not allege facts showing that the purported constitutional violations were the result of an official ADC policy, an unofficial custom, or a failure to train. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). Second, although prisons are required to provide notary services to inmates, the Court is unaware of any clearly established law that would require Lieutenant Dunagan to provide Swift a list of alternative notaries. Bounds v. Smith, 430 U.S. 817, 824-25 (1977), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996); see Maness v. Dist. Ct. of Logan Cnty., 495 F.3d 943, 943 (8th Cir. 2007) (affirming pre-service dismissal based on qualified immunity); see also Story v. Foote, 782 F.3d 968, 969 (8th Cir. 2015) (same).
Swift's claims against Director Payne, Warden T. Hurst, and Major Haynes fail because supervisors “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. And his allegations fall far short of showing that either Director Payne, Warden T. Hurst, or Major Haynes were deliberately indifferent to a pattern of similar misconduct by Captain Baker or Lieutenant Dunagan. S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).
Finally, Swift's sixty-day limitation on commissary and family visitation and one-year limitation on contact visitation do not implicate a liberty interest; and, accordingly, do not state a due process claim. Flemons v. Bolden, No. 5:18-CV-00073-DPM-JJV, 2019 WL 5700042, at *2 (E.D. Ark. May 14, 2019) (citing Kennedy, 100 F.3d at 642-43 & n.2 (8th Cir. 1996)) (finding no liberty interest and granting summary judgment where commissary and visitation privileges were stripped for sixty days); supplemented, 2019 WL 5700786 (E.D. Ark. Sept. 6, 2019), report and recommendation adopted, 2019 WL 5693732 (E.D. Ark. Nov. 4, 2019), aff'd, 815 Fed.Appx. 103 (8th Cir. 2020); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“A prisoner does not have a liberty interest in contact visitation.”).
IV. CONCLUSION
After careful consideration of Swift's Complaint (Doc. 2) and Amended Complaint (Doc. 7), the Court finds that Swift fails to state a claim upon which relief may be granted. His unverified “Affidavit of Truth” (Doc. 12-1) also fails to state a claim for relief.
IT IS THEREFORE RECOMMENDED THAT:
1. Swift's Complaint and Amended Complaint (Docs. 1, 7) be DISMISSED, without prejudice.
Although Jones counsels that an unexhausted claim on the face of the complaint may be dismissed “for failure to state a claim,” Jones, 549 U.S. at 214-15, a “strike” is not recommended in this case. See Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007) (citations omitted) (“The first case was dismissed without prejudice for failure to exhaust administrative remedies; such a dismissal is not a strike under section 1915(g).”).
2. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting this Recommendation would not be taken in good faith.