Opinion
No. A-11-484.
03-13-2012
JASON N. WITMER, APPELLANT, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES ET AL., APPELLEES.
Jason N. Witmer, pro se. Jon Binning, Attorney General, and Linda L. Willard for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E)
Appeal from the District Court for Johnson County: Daniel E. Bryan, Jr., Judge. Affirmed.
Jason N. Witmer, pro se.
Jon Binning, Attorney General, and Linda L. Willard for appellees.
IRWIN, SIEVERS, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
Pursuant to Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was submitted without oral argument on the court's own motion. Jason N. Witmer, an inmate in the custody of the Nebraska Department of Correctional Services (Department), appeals an order of the district court for Johnson County, Nebraska, dismissing his complaint seeking relief under 42 U.S.C. § 1983 (2006) and denying his request for the appointment of counsel. We find no merit to the appeal and affirm.
II. BACKGROUND
On December 1, 2010, Witmer filed a complaint pursuant to 42 U.S.C. § 1983 against the Department and various individual employees of the Department. Witmer based his complaints for § 1983 relief on a prior incident in which Witmer was disciplined, filed a grievance, and was denied relief. Witmer made assertions that he had been disciplined in retaliation for filing grievances, that false misconduct reports had been filed, and that he had not received fair disciplinary hearings. Witmer requested relief in the form of a new disciplinary hearing or expungement from his record of prior misconduct reports and monetary damages, as well as requesting a transfer to a different prison facility. Witmer also filed two separate requests for the appointment of counsel.
The State moved to dismiss Witmer's complaint, alleging that it failed to state a cause of action upon which relief could be granted. The court held a hearing on the State's motion, during which hearing Witmer offered and the court received a number of affidavits. The court held that Witmer's submission of affidavits in response to the motion to dismiss turned the proceedings into one for summary judgment and continued the proceedings to allow the State to respond to Witmer's affidavits. Another hearing was held approximately 1 month later, and the State declined to submit additional evidence and relied on its motion to dismiss for failure to state a cause of action.
The court denied Witmer's request for counsel, holding that Witmer's § 1983 claim was a civil proceeding and recognizing that the court does not appoint counsel for civil proceedings. The court entered an order denying the request for counsel and dismissed Witmer's complaint. With respect to Witmer's claims against the State, the court held that the State is not a person under § 1983. With respect to Witmer's other claims, the court held that Witmer was essentially challenging prior disciplinary action that had not been overturned or found to have been improper, and that such a claim did not sufficiently raise due process or other constitutional claims. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Witmer asserts that the district court erred in denying him counsel and in dismissing his complaint without affording him the opportunity to amend.
IV. ANALYSIS
1. REQUEST FOR APPOINTMENT OF COUNSEL
Witmer first asserts that the district court erred in denying his request for the appointment of counsel. He argues that he was forced to proceed pro se; that he was subjected to false accusations, threats, and harassment for pursuing his claims; and that the denial of counsel was tantamount to depriving him of access to the courts. We find no merit to this assertion.
In Nebraska jurisprudence, it has been held that the appointment of counsel may be required in either criminal or civil cases where a party may be deprived of his or her physical liberty. Poll v. Poll, 256 Neb. 46, 588 N.W.2d 583 (1999), disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). For example, in Allen v. Sheriff of Lancaster Cty., 245 Neb. 149, 511 N.W.2d 125 (1994), the Nebraska Supreme Court concluded in a habeas corpus appeal that an indigent litigant had a right to appointed counsel in a contempt action for failure to pay a debt assigned to him in a dissolution decree, where he was jailed for contempt. See Poll v. Poll, supra. In Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988), the Nebraska Supreme Court concluded that a putative father in a paternity action had a due process right to court-appointed counsel in a case where the county attorney's office assisted the mother in prosecuting her claim and concluded that due process requires that an indigent defendant have an absolute right to court-appointed counsel in state-initiated paternity proceedings. See Poll v. Poll, supra.
In the present case, Witmer brought a § 1983 civil claim, complaining of prior disciplinary action and seeking a new disciplinary hearing, expungement of disciplinary records, and monetary damages. The present action did not implicate a risk of deprivation of physical liberty. Witmer has not provided any authority to support his assertion that he was entitled to court-appointed counsel in this civil proceeding and, instead, merely asserts that "[a]ppointment of counsel would've provided [Witmer] with some sort of protection from defendants, their coworkers, and also access to his legal remedies. The judge did nothing but deny him all this." Brief for appellant at 4. Witmer was not entitled to court-appointed counsel, the lower court did not err in so finding, and this assigned error is without merit.
2. DISMISSAL OF COMPLAINT
Witmer next asserts that the district court erred in dismissing his complaint and not affording him an opportunity to amend the complaint. He asserts that the court erred in finding that he had not stated claims for relief for violations of due process and equal protection and that, even if he did, he should have been afforded an opportunity to amend his complaint. We find no merit to these assertions.
First, we find that the district court did not err in finding that Witmer had failed to state a cause of action for which relief could be granted. Witmer based his claim on a prior disciplinary proceeding that was upheld on appeal and complained about administrative segregation.
In Cole v. Loock, 259 Neb. 292, 609 N.W.2d 354 (2000), the Nebraska Supreme Court recognized and applied the reasoning of the U.S. Supreme Court decision of Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997), in which the U.S. Supreme Court held that for an incarcerated individual to bring a § 1983 action challenging the procedures utilized at a prior disciplinary proceeding, the prior disciplinary conviction would first have to be overturned and, if it has not been overturned, a claim for damages and declaratory relief cannot be brought under § 1983. In Cole v. Loock, supra, the Nebraska Supreme Court held that the incarcerated individual had alleged various deprivations of constitutional rights in association with a prior disciplinary proceeding and held that such a claim was a collateral challenge to the disciplinary action and not cognizable unless the disciplinary conviction has previously been invalidated. The court affirmed a directed verdict dismissing the § 1983 claim.
Similarly, Witmer's claims in the present case are based upon a prior disciplinary proceeding. Witmer complained that he was unfairly placed in administrative segregation, alleged that there was a false misconduct report filed, alleged that he did not receive a fair and impartial disciplinary hearing, and alleged that he had falsely been accused of misconduct on a number of occasions. Witmer did not demonstrate, or even allege, that the disciplinary action had been invalidated; in fact, it appears that it was affirmed by the district court and summarily affirmed on appeal to this court on May 26, 2010, in case No. A-10-071.
In addition, Witmer has complained that his constitutional rights were violated by being unfairly placed in administrative segregation and by having various accusations placed in his file. To implicate the protections of the due process clause, there must be a protectable liberty interest of the inmate's at stake. Abdullah v. Nebraska Dept. of Corr. Servs., 246 Neb. 109, 517 N.W.2d 108 (1994). See, also, Witmer v. Nebraska Dept. of Corr. Servs., 13 Neb. App. 297, 691 N.W.2d 185 (2005) (unless there is clear due process violation, courts are reluctant to interfere with prison's internal discipline methods). The argument that being placed in administrative segregation constitutes the type of atypical, significant deprivation of a protectable liberty interest giving rise to a due process violation has previously been rejected by the U.S. Supreme Court. See Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Witmer has provided no authority that would support the suggestion that accusations in his file implicate any protectable liberty interest.
Witmer's § 1983 complaint did not state a cause of action for which he was entitled to civil relief. The district court did not err in finding as such and in dismissing his complaint. Because his complaint failed as a result of being premised on a prior disciplinary action that had not been invalidated and other assertions of unfair treatment that do not implicate protectable liberty interests, there is no indication that amendment would have remedied any of the deficiencies, and we find no error in the court's failure to allow Witmer an opportunity to amend.
V. CONCLUSION
We find no merit to Witmer's assertions on appeal. We affirm.
Affirmed.