United States District Court, D. Kansas
DANNY E. BEAUCLAIR, Plaintiff,
DENNIS HIGH, et al., Defendants.
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the El Dorado Correctional Facility-Oswego (OCF). Plaintiff claims that a disciplinary report charging him with forgery was false and written by a correctional officer in retaliation for a grievance he wrote against her. The court finds that this action is subject to dismissal as frivolous and for failure to state a claim. Plaintiff is given the opportunity to show good cause why this action should not be dismissed.
Mr. Beauclair was previously given time to satisfy filing fee prerequisites and has done so by paying the fees in full.
ALLEGATIONS AND CLAIMS
Plaintiff names as defendants: Staff Sgt. Dennis High, OCF; Lt. Chrise Zenk, OCF; and Nancy Kemp, Nurse/RN, OCF. As the factual background for this complaint, he alleges as follows. On December 9, 2013, Mr. Beauclair submitted a "grievance against defendant Nancy Kemp for violating IMPP 02-118" and other misconduct. In this grievance, he claimed that at the Informal Resolution stage Kemp "lied to cover-up the fact" that plaintiff "was being denied adequate medical care" that was causing him "needless pain and suffering" in violation of the Eighth Amendment. A KDOC inmate is required to attach his Informal Resolution (IR) to his form-9 grievance in order to verify that he attempted informal resolution. However, plaintiff did not want to part with his original IR, which apparently had been signed by Kemp, and instead attached a copy that he had handwritten with "hand copy" at the top. See Complaint, Doc. 1-1 at 14. On this copy he handwrote Kemp's signature.
Defendant Kemp saw plaintiff's Form 9 grievance and wrote a Disciplinary Report (DR) on December 10, 2013, charging Mr. Beauclair with a "Class One Offense." Plaintiff exhibits this DR (Doc. 1-1 at 23) in which Kemp described the "Alleged Violation of Law or Rule" as:
XX-XX-XXXX Attempt, conspiracy, accessory, solicitation, liability for offenses of another. To Wit 21-5823(a)(1)(2),  forgery Class 1 Offence (sic).
Kemp reported in the DR that on December 10 she "received a grievance with a form 9 and a letter attached" and that "[u]pon reviewing the form 9" she "noticed signature and handwriting at the bottom of the form 9 as not my hand writing nor my signature." She noted that the papers were from Beauclair and that the form 9 had "hand copy" written on it.
Kemp's DR contained no evidence of the elements of forgery and no evidence of plaintiff's intent to defraud anyone. Id. at 15. Defendant Zenk, the shift supervisor, "read and approved" the DR and thus agreed that submitting a handwritten "copy" of Kemp's signature was forgery. Zenk served plaintiff with the DR on December 11, 2013. On December 18 and 19, 2013, defendant High listened to, then disregarded, plaintiff's motion to dismiss based upon a lack of intent to defraud and conducted a disciplinary hearing on the DR. Plaintiff presented evidence, and Kemp testified but presented no evidence of forgery. Hearing Officer High agreed with Kemp and Zenk that plaintiff's copying of Kemp's signature amounted to forgery and found plaintiff guilty. High sanctioned Beauclair with 45 days disciplinary segregation but suspended this punishment for 180 days. High immediately imposed additional sanctions of 60 days restrictions, a $20.00 fine, and 90 days loss of good time. Plaintiff began "serving the punishment" on December 19, 2013. He appealed the hearing officer's decision; and on January 7, 2014, the Warden overturned plaintiff's disciplinary conviction finding that: "does not meet criteria."
In Count II of his complaint, Mr. Beauclair claims that defendant High violated due process in that High failed to provide a full and fair hearing, was not "an impartial decision maker, " found plaintiff guilty "with no evidence at all of forgery, " and provided no "written disposition" stating the evidence relied upon.
As Count I, plaintiff claims that defendant Kemp violated his First and Fourteenth Amendment rights "to Free Speech of Retaliation" and acted in an "arbitrary and capricious" manner. As Count III, he claims that defendants Zenk and High violated his First and Fourteenth Amendment rights "under supervisory liability'"... "of retaliation' of Free Speech' with defendant Nancy Kemp." In support, he alleges that defendants Zenk and High were personally involved in the constitutional violation by Kemp, knew of her violations but failed to act to prevent them, and unreasonably approved the DR finding that plaintiff's handwritten copy of Kemp's signature constituted forgery when plaintiff had no intent to defraud. He further claims that the acts of defendants Zenk and High were "arbitrary and capricious" and violated K.A.R. XX-XX-XXX and XX-XX-XXX and that defendant Zenk violated his duty under K.A.R. XX-XX-XXX(c)(3) and (4).
Plaintiff seeks relief in the form of "an injunction to not be transferred, " as well as nominal damages "in the maximum amount" and punitive damages in the amount of $50, 000.
Because Mr. Beauclair is a prisoner suing state officials, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. Its "factual allegations must be enough to raise a right to relief above the speculative level" and "to state a claim to relief that is plausible on its face." Id. at 555, 570. The Tenth Circuit Court of Appeals has explained "that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
OTHER APPLICABLE LEGAL STANDARDS
1. Due Process Challenges to Prison Disciplinary Proceedings
In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme Court made clear that discipline in the form of segregated confinement ordinarily does not present the sort of "atypical, significant deprivation" that gives rise to a liberty interest protected by the Due Process Clause. See Sandin, 515 U.S. at 486; Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir. 1996); see McDiffert v. Stotts, 902 F.Supp. 1419, 1426 (D. Kan. 1995). In Sandin, the Court reasoned that:
[S]tates may under certain circumstances create liberty interests which are protected by the Due Process Clause (cites omitted). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, (cites omitted), nonetheless imposes ...