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Strope v. Barr

United States District Court, Tenth Circuit

September 27, 2013

MICHAEL LEE STROPE, also known as GORDON STROPE, Plaintiff,
v.
DOUG BARR, et al., Defendants.

MEMORANDUM AND ORDER

SAM A. CROW U.S. Senior District Judge

This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. It comes before the court on a motion for summary judgment (Doc. 93) filed by defendants Doug Barr, Steve Schneider, K. Coffey, J.D. Byard, Annette Russett, Jerry MacDonald, Sam Cline, and Robert Kelly (“defendants”).

Plaintiff filed a response in opposition (Doc. 105), and defendants filed a reply (Doc. 106). This matter is ripe for review, and the court enters the following findings and order.

Background

Plaintiff is a prisoner in the custody of the Kansas Department of Corrections. He commenced this action in 2009, alleging that his rights secured by the First, Eighth, and Fourteenth Amendments were violated during August and September 2007 while he was incarcerated in the Hutchinson Correctional Facility.

Counts 1-3.

On August 22, 2007, defendant Barr, a Corrections Counselor II, called plaintiff to his office to return a grievance. The matter was returned unanswered due to plaintiff’s failure to seek informal resolution before commencing the grievance procedures, as required by K.A.R. 44-15-101.

The parties disagree on what ensued. Defendants contend that plaintiff called defendant Barr an “idiot” and stated he was going to sue him. Plaintiff denies calling Barr a name but states that after Barr “threatened” him with disciplinary action, he told Barr he would sue him.

Plaintiff left Barr’s office and attempted to file a new grievance by giving it to another officer. That grievance was returned to him on August 28, 2007, with a memorandum from defendant Schneider, a Public Information Officer, again explaining that he must pursue informal resolution before filing a grievance.

On August 23, 2007, Barr prepared a narrative report and a disciplinary report against plaintiff.

A disciplinary hearing was conducted on September 4, 2007. Defendant MacDonald, a Disciplinary Hearing Officer, found plaintiff guilty of insubordination. Plaintiff did not seek witnesses but submitted a motion to dismiss.

Plaintiff was sentenced to a 30-day restriction from privileges and the withholding of good-time credits. Due to the restriction imposed, he was transferred from a medium-security dormitory to a maximum security area for 30 days.

Plaintiff unsuccessfully pursued an administrative appeal from the disciplinary filing.

Count 4.

On September 21, 2007, defendant Russett, a Senior Administrative Assistant to defendant Schneider, issued a disciplinary report to plaintiff for addressing her by only her first name on a grievance. This form of address contravened policy requiring use of last name.

The disciplinary report was withdrawn after it was discovered that a corrections officer had instructed plaintiff to address the request in that way. Plaintiff was not sanctioned for the conduct. Counts 5, 6, 8, and 9.

On September 22, 2007, during plaintiff’s placement in IMU, defendant Coffey, a Corrections Officer, seized an issue of Stuff magazine from plaintiff. At the time, policy prohibited inmates in the IMU from receiving magazines. Magazines intended for inmates in the IMU were to be held by their Unit Teams until the inmates were allowed to receive them. Defendant Coffey delivered the magazine to plaintiff’s Unit Team, as required by policy. The issue in question was not delivered to plaintiff and has not been found.

On October 4, 2007, plaintiff was scheduled for transfer to the El Dorado Correctional Facility. Officers Coffey and Byard conducted a routine inventory of his property prior to the transfer, and discovered a red cooler with plaintiff’s inmate number burned into the shell, four photos that violated the prohibition on possession of sexually explicit material, and a group of photocopied magazine clippings, which were not allowed in the segregation unit. The cooler was deemed suspicious because the markings suggested that the property might have been obtained in an unauthorized exchange.

Plaintiff was issued a disciplinary report as a result of these discoveries, and the cooler and photos were held as evidence pending the disciplinary hearing.

The hearing was conducted on October 15, 2007. Plaintiff submitted documentary evidence and a motion to dismiss. He was found guilty of possession of sexually explicit material in violation of K.A.R. 44-12-313, but not guilty of unauthorized trading because his purchase of a cooler was established. The cooler, however, was not located and is presumed destroyed.

Plaintiff was sanctioned with a 15-day restriction from privileges and fined $5.00.

In December 2007, plaintiff filed a property claim seeking a new cooler or replacement costs. In April 2008, he ...


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