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Proby v. Harris

March 7, 2007

GEORGE PROBY, JR. PLAINTIFF
v.
GRANT HARRIS, ET AL DEFENDANTS



MEMORANDUM OPINION AND ORDER

On August 18, 2006, Defendants filed a motion for summary judgment and brief in support (docket entries #44, #45) seeking to dismiss Plaintiff's 42 U.S.C. § 1983 complaint on the grounds that he has failed to establish a valid constitutional claim of retaliation. Alternatively, Defendants seek dismissal on sovereign and qualified immunity grounds. Defendants also filed a statement of indisputable material facts in support of their motion (docket entry #46) pursuant to Local Rule 56.1 of the Rules of the United States District Court for the Eastern District of Arkansas. By order entered August 21, 2006 (docket entry #47), Plaintiff was notified of his opportunity to file a responsive pleading opposing Defendants' motion for summary judgment, which he did on September 6, 2006 (docket entries #49, #50).

I. Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable factual inferences. Reed v. ULS Corp., 178 F.3d 988, 990 (8th Cir. 1999). A moving party is entitled to summary judgment if the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he will have the burden of proof at trial. Celotex, 477 U.S. at 322-23. To avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts, "by [his] own affidavit" or otherwise, showing that a genuine, material issue for trial exists. Id. at 324; Fed. R. Civ. P. 56(e). A non-movant has an obligation to present affirmative evidence to support his claims. Settle v. Ross, 992 F.2d 162, 163-64 (8th Cir. 1993). A litigant's verified complaint is generally considered an affidavit for purposes of summary judgment. Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994).

II. Background

Plaintiff has alleged a retaliation claim in violation of his First Amendment rights, the denial of due process in connection with the additional punishment imposed, and punishment that amounts to, in Plaintiff's words, "double jeopardy." This action arises out of a major disciplinary Plaintiff received on August 18, 2004, for assaulting another inmate with a screwdriver. He contends that after serving the punishment levied by the Disciplinary Committee (thirty days punitive isolation and class reduction to Class IV), the Classification Committee (Defendants) then retaliated against him by imposing an additional and separate punishment in the form of denying him a class promotion for one full year for which he claims he was immediately eligible under Arkansas Department of Correction ("ADC") policies and Board of Corrections guidelines.*fn1 Plaintiff claims Defendants retaliated against him for filing a separate § 1983 lawsuit against Defendant Moncrief for excessive force. Specifically, Plaintiff contends he was eligible for a class promotion status to Level III on November 23, 2004, which would have entitled him to receive good time credits and, in turn, to appear before the parole board in March 2005. He further claims that Defendants repeatedly denied him sixty-day administrative segregation reviews.

III. Analysis

Defendants contend that ADC policy provides that an inmate convicted of a felonious assault (i.e., one involving the use of a deadly weapon or that results in serious bodily injury) is not eligible for good time class promotion for one year from the date of the assault; therefore, the outcome of which Plaintiff complains was dictated by ADC policy rather than any personal animus of the Defendants (docket entry #44).*fn2 According to Defendants' statement of facts, and the evidence attached to it (see docket entry #46), on August 18, 2004, Plaintiff was involved in what they describe as a "violent fight" with another inmate. According to witnesses, Plaintiff was the initial aggressor of the fight. Plaintiff stabbed inmate Lewis Preston in the eye with a cross-tipped screwdriver. Inmate Preston's injuries required his transfer to UAMS Medical Center for additional treatment and ultimately resulted in the loss of his eye. Plaintiff received a major disciplinary and was found guilty of the charges. Inmate Preston subsequently filed a lawsuit concerning these specific allegations against Plaintiff in the U.S. District Court on January 4, 2005 (Preston v. Norris, 5:05CV00003), but moved to voluntarily dismiss the case without prejudice on February 1, 2005.

According to Defendants, Plaintiff admitted in his deposition that when a fight results in the victim-inmate going to the hospital for injuries, ADC practice is to punish the aggressor with "a year Class IV, no good time, nothing, in the hole." (see docket entry #46, Exhibit "E" pg. 11). Plaintiff also admitted that if he was found guilty of a felony assault, "a 17-1 free will charge," that he would get a year at Class IV (Id. Exhibit "E" pg. 12). Plaintiff was found guilty of 17-1, "Any act OR acts defined as felonies OR misdemeanor by the State of Arkansas" on August 24, 2004*fn3 (Id. Exhibit "E" pg. 21 & Exhibit "A"). To be eligible for reclassification and/or to appear before the Classification Committee, an inmate must have a clean institutional record for a minimum of sixty-days from the date of his last major disciplinary action (if punitive time is given, as it was in Plaintiff's case, then the sixty-days begins to run upon release from punitive). On November 23, 2004, the Classification Committee reviewed Plaintiff's administrative segregation status. When the Committee reviews an inmate's administrative segregation status, it considers the inmate's "hard file," including his disciplinary and assault history, and any major disciplinaries and disciplinary hearing actions. The Committee does not re-investigate the findings of fact recorded in a major disciplinary or disciplinary hearing action, nor does it re-investigate the merits of charges against an inmate. The five-member Classification Committee that conducted Plaintiff's administrative segregation review on November 23, 2004, informed him that he had to serve one year at Class IV status due to the fact that he was found guilty of a 17-1 felony assault with a weapon (see docket entry #46 & attached exhibits).

ADC Administrative Directive 91:09 (dated February 13, 1991), identifies certain major disciplinary convictions that make an inmate convicted of those infractions ineligible for reclassification of good time class for one year following his last disciplinary conviction. These convictions include a felonious assault. This policy, however, gives the unit warden discretion to recommend that an inmate be considered for reclassification sooner than one year. A Classification Committee is nevertheless not bound by this recommendation. Defendants contend that one year with no class promotion is the statewide ADC policy when an inmate assaults another inmate with a weapon. Defendants Bradberry and Walker were only two of five voting members of the November 23, 2004, Classification Committee. On January 26, 2005, the Classification Committee reviewed Plaintiff's administrative segregation status again. Defendants Bradberry and Walker were again only two of five voting members on this Committee. The Committee unanimously voted for Plaintiff to "remain" on administrative segregation status. The Classification Committee next reviewed Plaintiff's administrative segregation status on March 29, 2005. Defendants Bradberry and Walker were again only two of five voting members on this Committee and the Committee once again unanimously voted for Plaintiff to "remain."

Plaintiff alleges that he was denied class promotion for one year in retaliation for a lawsuit he filed against Defendant Moncrief. At his deposition, Plaintiff alleged that the charge of assault with a weapon was not added against him until afterhe filed the lawsuit against Defendant Moncrief. However, the evidence demonstrates that Plaintiff's major disciplinary was filed on August 19, 2004, the disciplinary states that confidential witnesses revealed Plaintiff had assaulted inmate Preston with a weapon. Plaintiff did not file his lawsuit against Defendant Moncrief until December 27, 2004 (5:04CV00451), some four months after the disciplinary and one month after the Classification Committee's November review of his administrative segregation status. Although Defendant Harris as the unit warden may recommend that any inmate be considered for reclassification sooner than one year, in this case he did not. Had he done so, the Committee would nevertheless have been free to disregard it.

Plaintiff contends (see docket entries #49, #50) that he and inmate Preston merely had a fight and no stabbing took place. He further contends that if inmate Preston lost his eye, it was at the hands of the security officers who restrained him. Plaintiff challenges whether any confidential informants turned him in for the alleged stabbing because he has never seen a statement of same and Defendants have provided none. He has further seen no proof of the screwdriver used, and no documentation of any type of investigation by the state police or internal affairs. It is Plaintiff's belief that Defendants have manufactured these allegations to cover up their own officers' misconduct. Plaintiff additionally contends that he was never found guilty of stabbing inmate Preston in the eye and that every disciplinary that has an assault and battery charge automatically carries with it a "17-1" charge to notify the state police to investigate. Last, Plaintiff contends that in a separate lawsuit he filed arising out of the same facts as this case (this one for excessive force), the defendants' counsel, in her brief in support of her motion for judgment on the pleadings, stated that the use of force was necessary to end the fight, and that nobody received injuries as a result. According to Plaintiff, this clearly shows that he did not stab inmate Preston.

To begin with, the case Plaintiff refers to is Proby v. Moncrief (5:04CV00451) and he grossly mis-characterizes counsel's statement. Under the argument "Defendants Did Not Use Excessive Force Against The Plaintiff," the statement reads: "The use of force was necessary under the circumstances to end the fight and fortunately, the inmates did not suffer any injuries as a result" (see Case No. 5:04CV00451, docket entry #32). Clearly, counsel meant that the inmates did not suffer any injuries as a result of the use of force by the officers, and nothing else. Nothing in that statement indicates that Plaintiff did not stab inmate Preston in the eye as he would have this Court believe. That case was dismissed with prejudice on January 6, 2006, based on Plaintiff's failure to state a claim (see Case No. 5:04CV00451, docket entry #53). Moreover, inmate Preston's short-lived*fn4 lawsuit against Plaintiff also alleges that Plaintiff stabbed him in the eye with a cross-tipped screwdriver, which ultimately resulted in the loss of sight in the affected eye (see Case No. 5:05CV00003, docket entry #2). This Court finds that complaint, together with Defendants' recitation of the facts and evidence supporting the motion for summary judgment to be substantially unrefuted. That is, Plaintiff here has not created a substantial issue of material fact.

A. Retaliation

This circuit has for years recognized an inmate's claim for retaliatory discipline pursuant to § 1983 where a prison official files disciplinary charges in retaliation for the inmate's exercise of his constitutional rights. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Plaintiff's claim of retaliation will fail, however, if the alleged disciplinary violation was issued for the actual violation of the prison rule. Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994); see also Cowans v. Warren, 150 F.3d 910, 911 (8th Cir. 1998) (a retaliation claim is precluded if the disciplinary punishment was imposed based on a finding that the inmate actually violated a prison regulation). Thus, Plaintiff's claim fails if Defendants can successfully demonstrate "some evidence" that Plaintiff actually committed the relevant rule violations. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); Goff v. Burton, 91 F.3d 1188, 1191 (8th Cir. 1996). This "some evidence" rule allows the federal courts to defer to the judgment of prison officials in maintaining discipline in their institutions while meeting constitutional requirements. Hill, 472 U.S. at 455-56. The limited review by federal courts does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Id. at 455. Even the fact that an inmate may be innocent of the charges does not raise a due process issue; all that is constitutionally required is "due process, not error-free decision-making." Ricker v. Leapley, 25 F.3d 1406, 1410 (8th ...


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