Opinion
C.A. No. 03-220 S
November 24, 2003
Report and Recommendation
Plaintiff Edward Eugene Young, pro se an inmate confined at the Adult Correctional Institutions, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 naming as a defendant A.T. Wall, Director of the Rhode Island Department of Corrections ("DOC"). Currently before the Court is defendant Wall's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has objected thereto. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that Wall's motion to dismiss be granted in part, and denied in part. Specifically, I recommend that all of plaintiff's claims be dismissed, except those claims alleging that Wall improperly "takes" the interest earned on Young's inmate accounts, in violation of the Fifth Amendment.
Background
Edward Eugene Young's Amended Complaint can best be characterized as cryptic and is difficult to understand. Plaintiff appears to assert seven constitutionally questionable allegations in his Amended Complaint: (1) he was wrongly confined in segregation for twenty-two days, (2) he was removed from his prison job, (3) he was not permitted to change his cell to a different tier, (4) he was attacked by fifteen inmates sometime between February 9, 1997 and February 19, 1997, (5) he was punched by an unnamed correctional officer on February 24, 2003, (6) he has been invited to participate in sexual activity with other inmates, and (7) that the DOC improperly takes the interest earned on his inmate accounts.
In his Amended Complaint, plaintiff also mentions prosecutorial misconduct and juror misconduct that occurred during his trial. However, such claims are generally not cognizable under section 1983. A section 1983 plaintiff, seeking to recover on such a claim, must demonstrate that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Here, no such action has been taken. Plaintiffs conviction and his sentence have not been invalidated.
Wall has moved to dismiss. Plaintiff has supplied an objection.
Discussion
A. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the ***complaint as true, and construe these facts in the light most favorable to the [plaintiff]."Chongris v. Board of Appeals. 811 F.2d 36, 37 (1st Cir. 1987). A Rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Under a Rule 12(b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions."United States v. AVX Corp. 962 F.2d 108, 115 (1st Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Thus, in ruling on the motion to dismiss, the pertinent inquiry is whether plaintiffs complaint sets forth sufficient factual allegations which, if proven, would support his claims of a deprivation of federal rights.
Plaintiff has brought suit under 42 U.S.C. § 1983. Section 1983 provides:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C § 1983.
In order to maintain a section 1983 action, the conduct complained of must be committed by a person acting under the color of sate law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Here, plaintiff alleges that Wall, a state actor, violated his federally secured rights based upon a myriad of claims set forth in his Amended Complaint. I will discuss each claim in turn.
I.Fourteenth Amendment Due Process Clause Claims
Plaintiff first asserts three claims under the due process clause of the Fourteenth Amendment. As his first basis for relief, Plaintiff alleges that he was wrongly placed in segregation for twenty two days. However, the United States Supreme Court has made clear that "[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken 'within the sentence imposed'" Sandin v. Conner. 515 U.S. 472.480 (1995)(quoting Hewitt v. Helms, 459 U.S. 460.468 (1983). Thus, plaintiffs placement in segregation does not directly implicate the due process clause. Moreover, segregation for twenty two days does not constitute an "atypical, significant deprivation" which "create[s] a liberty interest" under state law. Sandin, 515 U.S. at 486.
Second, plaintiff alleges that he was terminated from his prison job. Prison officials, however, maintain discretion and flexibility in the day to day management of prisons. See e.g. Sandin, 515 U.S. at 482-83. Inmates do not have a constitutional right to participate in rehabilitative or vocational programs. See Moody v. Daggett 429 U.S. 78, 88 n. 9 (1976). Nor do inmates have an identifiable liberty interest in maintaining a prison job.Bulger v. United States Bureau of Prison, 65 F.3d 48, 50 (5th Cir. 1995).
Third, plaintiff attempts to assert a claim based upon the refusal of the DOC to approve his request for a transfer to a different cell on a different tier. This claim is without merit. There is no Constitutional right to be incarcerated in a particular facility, Meachum v. Fano, 427 U.S. 215, 225 (1976), nor do prisoners enjoy a choice of any particular cell. Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir. 1984)(citing Hewitt v. Helms, 459 U.S. 460, 466-67 (1983)).
Accordingly, since the facts alleged by the plaintiff fail to set forth a violation of the due process clause of the Fourteenth Amendment, I recommend that those claims be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Eighth Amendment Claims
Next, plaintiff asserts three claims under the Eighth Amendment. Plaintiff first alleges that he was the victim of an assault, carried out by fifteen inmates in 1997. However, the applicable statute of limitations for § 1983 claims in Rhode Island is three years.Owens v. Okure, 488 U.S. 235, 249-50 (1989); O'Rourke v. City of Providence, 77 F. Supp.2d 258, 265 n. 2 (D.R.I. 1999); see also R.I. Gen. Laws § 9-1-14(b). Here, the assault occurred in 1997 and, accordingly, the statute of limitations for claims based upon this assault expired in February of 2000. Plaintiffs instant complaint was filed on June 4, 2003, well beyond the limitations period.
Second, plaintiff alleges that he was punched by a correctional officer in the chest in February of 2003. The use of excessive force can be an Eighth Amendment violation when there is unnecessary and wanton infliction of pain and the force was "maliciously and sadistically [used] to cause harm." Hudson v. McMillian. 503 U.S. 1, 6-7(1992);Whitely v. Albers. 475U.S. 312, 320-321. But one isolated punch by a prison guard does not, in and of itself, translate into constitutional liability. See Hudson, 503 U.S. at 9-10. ("[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action . . . [t]he Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind."). Plaintiffs claim, based upon this punch, is better characterized as a state — law tort that the plaintiff can bring in state court if he so chooses.
Third, plaintiff also indicates in his Amended Complaint that other inmates have, on occasion, asked him to engage in sexual activity. Generally, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan. 511 U.S. 825, 832 (1994); Hudson v. Palmer. 468 U.S. 517, 526-527 (1984) (Prison officials must take reasonable measures to guarantee the safety of inmates.). Plaintiff here does not indicate that he has been subjected to violence, nor has he set forth facts indicating that he is in fear of harm. What plaintiff has indicated is that he has been asked to engage in sexual activity. While this may have been distressing or unnerving to the plaintiff, being subjected to an unwanted solicitation for a sexual encounter with another inmate, standing alone, does not rise to the level of a constitutional violation.
Accordingly, since the facts alleged by the plaintiff fail to set forth a violation of his Eighth Amendment rights, I recommend that plaintiffs claims based upon the Eighth Amendment be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
Fifth Amendment Taking Clause Claims
As his last basis for relief, plaintiff makes allegations regarding his inmate accounts. Plaintiff alleges that he is required to put aside twenty-five percent of his prison wages into a "frozen" account and he also maintains funds in a second inmate account, an "open" account. Plaintiff alleges interest accrues on the money in those accounts and that the interest is kept by the DOC and/ or the General Treasurer of the state of Rhode Island.
The Fifth Amendment provides that, "private property [shall not] be taken for public use without just compensation." See U.S. Const. amend. V. The Fifth Amendment is applicable to the states via the Fourteenth Amendment. Phillips v. Washington Legal Foundation, 524 U.S. 156, 163-64 (1998). Taking the interest from an inmate's account can be considered a violation of the Takings Clause, See Schneider v. California Dep't of Corrections, 151 F.3d 1194, 1201 (9th Cir. 1998) (Interest on an inmate's account cannot be appropriated without implicating the Takings Clause); Schneider v. California Dep't of Corrections, 345 F.3d 716 (9th Cir. 2003);but see Washlefske v. Winston, 234 F.3d 179, 186 (4th Cir. 2000) (A prisoner has no property interest in interest income on his inmate account).
Wall, as Director of the DOC, is statutorily responsible for management of the Rhode Island prison system. See R.I. Gen. Laws § 42-56-10(5) (The Director of the Department of Corrections shall "[m]anage, direct, and supervise the operations of the department."). Given the broad scope of authority that the Director possesses, it is not a stretch of the imagination to assume that the Wall sets policies and controls the management of inmate accounts at the DOC. And considering pro se complaints must be construed liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), this court will not recommend dismissal of this claim at this time. Plaintiff has sufficiently alleged that the DOC and Wall "take" the interest on his inmate accounts and convert the interest to their own use.
Since this Court is unable to say that the plaintiff can prove no set of facts that would entitle him to relief from Wall under the Takings Clause, Wall's motion to dismiss, as it pertains to plaintiffs claims under the Fifth Amendment, should be denied. I so recommend.
Conclusion
For the reasons set forth above, I recommend that Wall's motion to dismiss be granted in part, and denied in part. I recommend that all of plaintiff's claims be dismissed, except those claims alleging that Wall improperly "takes" the interest earned on his inmate accounts, in violation of the Fifth Amendment. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).
Add on to Motion For Repayment Of Fees.
Please add this to the notion that i put in for the repayment of fees to your court from the correctional prison, the fees that they are taking from me. for me to go to court it is now the Balance of $420.46 in full that was took from me. as of 9/30/2003 from court legal copies, postage. i had in my motion the sum of $305.67 and now want to add the sum thaT THEY took as of the date said above which would bring it to $420.46. you for your time.
ORDER
Denied. No basis exists to grant the relief that plaintiff seeks by way of this instant motion.
Motion For Repayment Of Any Fees.
Giving to the Rhode Island Department Of Corrections For Actcess To The Court System.
Now comes the Petitioner in the above intitled action. And hereby moves this, Honorable Court For this motion of repayment of all and any fees. That was took from me by the Rhode Island Department Of Corrections for the actcess to the court. I now ask the court to order for the repayment in the sum of $305.00 And for the reasons that are set forth in the accompanying Memorandum attachments thereto. And for the for going facts of the Constitution ART. 15 The Declaration Of Rights. And by the prison trust account statments, that do show the payments giving to Rhode Island Department Corrections, for Postage, letters, paperwork as in Motions on case work and legal copys. Or anything etc, to court the Petitioner request that his motion be granted And he be Repaid of Funds.
Respectfully Submitted Petitioner
ORDER
Denied. No basis exists to grant the relief that plaintiff seeks by way of this instant motion.