United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge J. Leon Holmes. 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 this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Michael Grant Day, an inmate at the Yell County Jail, filed a
pro se complaint pursuant to 42 U.S.C. § 1983
on January 3, 2018 (Doc. No. 2). Day was instructed to file
an amended complaint clarifying who he is suing, describing
how each defendant violated his constitutional rights and how
he was injured by each defendant's actions. See
Doc. No. 3. Day was also instructed to describe the
conditions he endured while in punitive isolation and whether
those conditions were harsh or different than his
incarceration in the general population. See Id. Day
filed an amended complaint on January 26, 2018 (Doc. No. 4).
In his amended complaint, Day complains about an incident in
which his cellmate was bleeding and states that he (Day) was
then put on lockdown by defendant Jennifer Kenner.
Id. The undersigned finds that Day fails to describe
facts sufficient to state a claim for relief and recommends
dismissal of his claims.
law requires courts to screen prisoner complaints. 28 U.S.C.
§ 1915A, 1915(e)(2). Claims that are legally frivolous
or malicious; that fail to state a claim for relief; or that
seek money from a defendant who is immune from paying damages
should be dismissed before the defendants are served. 28
U.S.C. § 1915A, 1915(e)(2). Although a complaint
requires only a short and plain statement of the claim
showing that the pleader is entitled to relief, the factual
allegations set forth therein must be sufficient to raise the
right to relief above the speculative level. See
Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007) (“a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment]to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . .”).
While construed liberally, a pro se complaint must
contain enough facts to state a claim for relief that is
plausible on its face, not merely conceivable.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that the conduct of a defendant acting under color of
state law deprived him of a right, privilege, or immunity
secured by the United States Constitution or by federal law.
42 U.S.C. § 1983. It appears that Day may be asserting
an Eighth Amendment and/or Fourteenth Amendment due process
claim based on his time in lockdown. Day claims he has been
on lockdown since August 7, 2017, and does not get to watch
TV, read the newspaper, or talk to anyone. Doc. No. 4 at 5.
support an Eighth Amendment violation, a plaintiff must prove
the existence of objectively harsh conditions of confinement,
together with a subjectively culpable state of mind by prison
officials in condoning or creating the conditions. Choate
v. Lockhart, 7 F.3d 1370, 1373 (8th Cir. 1993). The
“defendant's conduct must objectively rise to the
level of a constitutional violation by depriving the
plaintiff of the ‘minimal civilized measure of
life's necessities.' . . . The defendant's
conduct must also reflect a subjective state of mind evincing
deliberate indifference to the health or safety of the
prisoner.” Revels v. Vincenz, 382 F.3d 870,
875 (8th Cir. 2004) (quoting Rhodes v. Chapman, 452
U.S. 337, 342 (1981) and Estelle v. Gamble, 429 U.S.
97, 104 (1977)). “[D]iscomfort compelled by conditions
of confinement, without more, does not violate the
amendment.” Smith v. Coughlin, 748 F.2d 783,
787 (2nd Cir. 1984) (quoting Jackson v. Meachum, 699
F.2d 578, 581 (1st Cir. 1983)). Day does not allege that he
has been denied the minimal civilized measure of life's
necessities while he has been on lockdown. He does not claim
he was deprived of food, shelter, clothing, water, medical
attention for a serious medical condition, or any other
necessity. Denial of television or newspaper privileges does
not constitute a denial of a minimal civilized measure of
life's necessities. Accordingly, Day does not state a
claim under the Eighth Amendment.
state a Fourteenth Amendment due process claim, a plaintiff
must “demonstrate that he was deprived of life, liberty
or property by government action.” Phillips v.
Norris, 320 F.3d 844, 846 (8th Cir. 2003). Day was not
deprived of life or property; accordingly, he must identify
the deprivation of a liberty interest to sustain a due
process challenge to his prison disciplinary proceeding.
Id. at 847; Sandin v. Conner, 515 U.S. 472,
484 (1995). A prisoner has no liberty interest in having
certain procedures followed in the disciplinary process;
rather, the liberty interest arises from the “nature of
the prisoner's confinement.” Phillips, 320
F.3d at 847. “In order to determine whether an inmate
possesses a liberty interest, we compare the conditions to
which the inmate was exposed in segregation with those he or
she could ‘expect to experience as an ordinary incident
of prison life.'” Phillips, 320 F.3d at
847 (quoting Beverati v. Smith, 120 F.3d 500, 503
(4th Cir. 1997)).
inmate has no liberty interest in avoiding segregated
confinement, as long as the conditions do not amount to an
“atypical and significant” hardship that would
give rise to due process protection as set forth in
Sandin v. Conner, 515 U.S. 472, 483-484 (1995). The
Eighth Circuit Court of Appeals has “consistently held
that administrative and disciplinary segregation are not
atypical and significant hardships under
Sandin.” Portly-El v. Brill, 288 F.3d
1063, 1065 (8th Cir. 2002). Day does not describe the
conditions he endured while on lock-down other than to
complain he does not get to watch TV, read the newspaper, or
talk to anyone. These complaints do not amount to an atypical
and significant hardship. See e.g., Russell v.
Helder, No. 5:15-CV-05082, 2016 WL 4014106, at *6 (W.D.
Ark. June 28, 2016), report and recommendation
adopted, No. 5:15-CV-5082, 2016 WL 4007698 (W.D. Ark.
July 26, 2016) (“Inmates have no constitutional right
to watch television or listen to a radio.”).
Accordingly, Day describes no change in conditions that could
constitute the deprivation of a liberty interest.