United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by a state prisoner. Mr. Albright claims that his constitutional rights under the First, Sixth, and Fourteenth Amendments were violated during prison disciplinary proceedings. Having examined all materials filed, the court finds that the complaint is deficient in several ways. Plaintiff is given time to cure these deficiencies. If he fails to comply within the prescribed time this action may be dismissed without further notice.
ALLEGATIONS AND CLAIMS
In this action, plaintiff attempts to challenge his convictions in disciplinary proceedings that arose from two distinct incidents at the Ellsworth Correctional Facility in Ellsworth, Kansas (ECF). However, some of his general allegations and claims fail to specify to which incident they refer. The court has attempted to separate specific allegations and discuss them under the related incident. The exhibits attached to plaintiff's complaint are parts of the administrative record in the two disciplinary proceedings and are considered a part of plaintiff's complaint. As the factual background for his complaint, plaintiff alleges the following.
At the ECF, Mr. Albright wrote a letter to his wife, which he delivered to the institution's mailbox for mailing. The letter was read in the ECF mailroom, found to contain threatening and intimidating statements, and confiscated. A disciplinary report (DR) for a "class one disciplinary infraction" was written against Mr. Albright charging him with rules violations: Threatening and Intimidating (XX-XX-XXX) and Mail (XX-XX-XXX). Plaintiff received a copy of the Disciplinary Report (DR) and notice of the hearing in a timely manner, was advised of the possible penalty, and waived having the reporting officer testify. Complaint (Doc. 1-1) at 4. He acknowledged that he understood the charges and the possible penalties. Plaintiff pleaded guilty to the mail charge and not guilty to the threatening and intimidating charge. A hearing on these charges was conducted by CSII Beaver on November 16, 2011. Plaintiff testified at the hearing that he made the statements in the letters, which the hearing officer found "were threatening in nature." Plaintiff testified in his defense that his wife "likes it rough, " had said "the whole being raped and beaten thing" to him in person and stuff "trying to be funny, " and that he loved his wife and was not going to threaten her. He argued that his statements in his letter were taken out of context. He also questioned how he could rape his wife, and how his wife's testimony was "irrelevant if she feels threatened and intimidat[ed]." Plaintiff also admitted that he had stated he would "have no problem shooting a mother fucker, " but argued that he was not threatening a particular person. Id. The evidence presented at the hearing was described as "copy of letters" and Mr. Albright's testimony. Id. at 6. Mr. Albright was found guilty "based on the written report" and his own testimony in which he admitted to making the statements. Id. The decision of the hearing officer was approved by the Facility Warden, and Mr. Albright was notified of his right to appeal. Plaintiff exhibits a copy of his "Disciplinary Appeal to the Secretary" dated December 7, 2011. The reasons plaintiff provided for his appeal included that he "did not threaten his wife, this is ridiculous" and that the statements were "the way we talk to one another" and their relationship. He argued that while "someone may disagree with it" they "did not have the right to tell us it's wrong." He further argued that he would protect his wife, and since he did not specify a particular person he would hurt there was no victim and thus "no crime." He complained that he asked to have his wife testify but they would not call her, and he suggested in his appeal that she be contacted. The hearing officer's decision was approved on appeal and found to be "based on some evidence." Id. at 1. The sanctions approved on appeal were: restriction from privileges up to 10 days, fine not to exceed $10, extra work w/o incentive pay not more than 2 hrs/day no more than 5 days, work w/o incentive pay not to exceed 5 days, and restitution not less than $3.00 nor more than $20.00. Id.
The pages attached to the complaint that are grouped as "Exhibit B" pertain to the distinct disciplinary charge against plaintiff of "XX-XX-XXX Contraband." The hearing on this charge was apparently also held on November 16, 2011. Plaintiff's exhibit refers to the "evidence" in this hearing as "Piece of Emery Cloth." See Doc. 1-1 at 11. Mr. Albright testified at his hearing that he had only been in the cell for a week when they shook it down and found "the stuff" between the top and bottom bunks, that he had not seen the emery cloth which he stated was like sand paper, that he did not put it there, he did not see his cellmate put it there, and someone else put it there. The summary of "FMS Hawks" testimony is not at all clear, but it appears he testified that the cable outlet "in between the two" had the paint and screws "chipped away, " the seal around the outlet had been broken, and there was none of the usual dust inside. He further testified that the only person that worked in the cable boxes would have had no conceivable need for an emery cloth. Plaintiff was found guilty of this charge "based on the written report and testimony." "G.O. 09-114" was cited for the proposition that when contraband was found in a common area in a cell, all inmates assigned to the cell will be held responsible. The same sanctions were imposed as in plaintiff's other disciplinary proceeding. See Doc. 1-1, at 8, 11. In his exhibited appeal, plaintiff repeated his statement that he had only been in the cell for a week and did not know about the contraband. He made several arguments including that he did not have any implement with which to unscrew the outlet and thus had no access to it and had no use for an emery cloth. The decision and sanctions were approved on appeal.
Plaintiff claims as follows. Defendants violated his right to Freedom of Speech by attempting "to regulate the way (he) speaks to and engages in humor with his wife." Defendant Roberts violated due process "by failing to adhere to K.A.R. XX-XX-XXX,  by not allowing (plaintiff) to have a fair and impartial hearing officer." As a result, "the hearing officer failed to consider that there was no evidence suggesting (plaintiff) knew anything about the contraband" and failed to consider plaintiff's cellmate's testimony. Defendant Roberts violated due process by failing to train officers to shake down cells before an inmate moved in and "allowing the hearing officer to ignore this oversight." Defendants violated due process "by failing to adhere to" other specific provisions of cited Kansas Administrative Regulations and Kansas statutes. Defendants did not evaluate the evidence fairly and abused their authority.
Plaintiff sues the Kansas Department of Corrections (KDOC) and Secretary of Corrections Raymond Roberts. Based upon the foregoing allegations and claims, he asserts that these defendants violated his right to Due Process under the Fourteenth Amendment, right to legal counsel under the Sixth Amendment, and Freedom of Speech under the First Amendment. The only relief sought by Mr. Albright is $1, 800.00.
Because plaintiff is a prisoner suing government 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), (b) and 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). Nonetheless, "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 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).
B. Due Process Challenges to Prison Disciplinary Proceedings
"The Fourteenth Amendment prohibits states from depriving citizens of liberty without due process of law." Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). This guarantee applies to prison inmates. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). "Due process requires procedural protections before a prison inmate can be deprived of a protected liberty interest in earned good time credits." Abdulhaseeb v. Ward, 173 Fed.Appx. 658, 661 (10th Cir. 2006)(citing Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996)).
However, due process is not implicated by every disciplinary sanction imposed upon a prison inmate. Instead, the Supreme Court has held that protected liberty interests are at issue in the prison setting only when an inmate is subjected to (1) conditions that "impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" or (2) disciplinary actions that "inevitably affect the duration of his sentence." Harrison v. Morton, 490 Fed.Appx. 988, 992 (10th Cir. 2012)(quoting Sandin v. Conner, 515 U.S. 472, 484, 487 (1995)). Punishments of fines and restrictions for a certain number of days only, for example, generally "fail to implicate a protected liberty interest." Id. (citing Sandin, 515 U.S. at 483B84, 487). It follows that the procedural protections afforded by Wolff v. McDonnell simply do not apply to these ...