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Proch v. Baker

United States District Court, D. Kansas

June 28, 2017

TAUREAN XAVIER PROCH, Plaintiff,
v.
D. BAKER, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge.

         Plaintiff Taurean Proch, a former federal inmate proceeding pro se, filed this case against the Bureau of Prisons (“BOP”) and ten prison officials, claiming that they violated his constitutional rights in a number of ways: (1) seizure, destruction, and/or theft of his personal and intellectual property; (2) denial of due process and access to the courts; (3) harassment and retaliation for seeking administrative remedies; (4) infliction of cruel and unusual punishment on plaintiff by wrongfully terminating his jobs, threatening and harassing him, and forcing him to sleep on a bare mattress; (5) intentional and negligent infliction of emotional distress; (6) failure to supervise or intervene in constitutional violations; and (7) the BOP's maintenance of a custom or policy of staff misconduct. Defendants moved for summary judgment or dismissal on a number of grounds (Doc. 54). Plaintiff initially failed to respond.

         After the court ordered plaintiff to show cause why the motion should not be granted as uncontested, plaintiff asked for additional time to respond. The court granted his request, and eventually, plaintiff responded with a three-page brief. In that brief, plaintiff generally argues that (1) plaintiff cannot access a legal research database to help him research, but the issues presented by defendants require little argument; (2) plaintiff has exhausted all of his administrative remedies; and (3) there are factual disputes in this case that must be resolved. Plaintiff asks the court to incorporate the allegations and evidence from his complaint into his response. But neither plaintiffs complaint nor his response are signed under penalty of perjury, so the court cannot consider plaintiffs allegations as evidence to controvert defendant's submitted evidence. Cf. Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988) (“Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e).”). This failure on plaintiff s part is of critical importance. Defendants moved for summary judgment and asserted qualified immunity. This puts a significant burden on plaintiff to offer evidence in support of his claims. Because plaintiff has not done so, the court accepts as true all of defendants' properly-supported facts. Utilizing these uncontroverted facts, the court grants defendants' motion.

         I. Background

         A. Defendants

         Plaintiff names a number of defendants in his complaint. For ease of reference, defendants, their roles, and their connection to plaintiffs claims are summarized below:

. Defendant Claude Maye: Defendant Maye was the Warden at USP Leavenworth. He prioritized good sanitation in housing units. He was present when plaintiffs cell was searched on two occasions, and met with plaintiff in an effort to resolve issues identified in plaintiffs various administrative remedy requests.
. Defendant D. Baker: Defendant Baker was the Unit Manager at USP Leavenworth. He was involved in the search of plaintiff s cell on January 2, 2014. Defendant Baker met with plaintiff and defendant Maye in late January 2014, in an effort to resolve issues that were the subject of plaintiff s administrative remedy requests.
. Defendant C. Hartley: Defendant Hartley was a Senior Officer who was involved in cell searches as part of her duties. She was present for the January 2, 2014 cell search.
. Defendant D. Howard: Defendant Howard was a Correctional Counselor for the B-Lower Housing Unit at USP Leavenworth. He was not involved in the January 2, 2014 cell search, but plaintiff did approach him in January 2014 to request return of his papers. Defendant Howard told plaintiff he would have to talk to defendant Baker when Baker returned to the institution. The wait was a few days, and then defendant Howard talked with defendant Baker.
. Defendant J. Herbig: Defendant Herbig was a Technician in the Special Investigative Section (“SIS Department”) at USP Leavenworth. He processes property confiscated during cell searches. Defendant Herbig reviewed certain items of plaintiffs personal property on January 31, 2014, but that property did not include paper documents or legal materials. Defendant Herbig investigated plaintiffs administrative remedies related to the property seizure and confiscation forms. He met with plaintiff several times, but these meetings usually did not take place in the middle of a work assignment (contrary to plaintiffs unsupported allegation).
. Defendant T. Wagner: Defendant Wagner was a General Foreman at USP Leavenworth. Plaintiff was assigned to work defendant Wagner's work detail from June 7, 2013 through March 31, 2014. When plaintiff began working with defendant Wagner, plaintiffs work performance was appropriate. But eventually, he began exhibiting behavior that reflected less appropriate interpersonal skills. In March 2014, plaintiff was removed from the work assignment because of his work habits and actions. Defendant Wagner was not aware that plaintiff had filed a significant number of administrative remedies.
. Defendant V. Logan: Defendant Logan was the Supervisor of Education at USP Leavenworth. Plaintiff worked in defendant Logan's department from April 30, 2014 through November 14, 2014, although defendant Logan did not directly supervise plaintiff. On September 30, 2014, defendant Logan wrote an incident report because plaintiff was late to work. The incident report was not false, although the time listed on it was approximate. At the time she wrote the report, defendant Logan was unaware that plaintiff had filed a number of administrative remedies.
. Defendant P. Mitts: Defendant Mitts was a Correctional Counselor at USP Leavenworth, was involved with a disciplinary hearing for plaintiff being late to work on September 30, 2014, and imposed discipline for the incident.
. Defendant Arellano: Defendant Arellano was a Correctional Counselor at USP Leavenworth, was involved with the same disciplinary hearing as defendant Mitts, and imposed discipline for the incident. He documented review of the surveillance video in the institution's computer database, called SENTRY. When describing the time that plaintiff arrived to work, he used the wording “approx., ” which is the standard language he uses.
. Defendant Loftness: Defendant Loftness was the Associate Warden at USP Leavenworth. He recalls plaintiff filing a number of grievances and administrative remedies. Defendant Loftness was not personally involved in any of plaintiff s allegations regarding property seizure, retaliation, harassment, access to the courts or administrative remedy process, improper discipline, or termination from work assignments. Instead, he acted in a supervisory capacity, reviewing claims that plaintiff raised to him personally.

         B. Facts

         Plaintiff was incarcerated at USP Leavenworth from 2010 through 2016. He alleges that he is entitled to relief for the following incidents. The facts presented below include both properly-supported facts submitted by defendants and unsupported allegations presented by plaintiff. The court presents plaintiffs version of the facts only to give context to his claims. Plaintiffs account lacks any evidentiary support, and therefore is improper for consideration on summary judgment.

. January 2, 2014 Cell Search: Plaintiff had a significant amount of property in his cell, as well as paint on the tile in the cell. Defendant Baker instructed staff to place plaintiffs locked green duffle bags temporarily in a vacant unit team office. The bags appeared to contain papers and books. Plaintiff did not indicate to defendant Baker a need to have immediate access to his legal materials. Defendant Baker gave plaintiff the opportunity to obtain his legal materials the following day, and gave plaintiff all of his personal property back on January 13, 2014.
. January 3, 2014 Transfer: Because of plaintiff s excessive property and alteration of tiles, he was moved to a different cell in B-Lower. Plaintiff makes the unsupported allegation that the transfer was in retaliation for his pursuit of administrative remedies. At this time, however, plaintiff had not yet filed forms relating to the January 2 cell search, and he had only filed two forms overall-compared to over one hundred by the end of 2014.
. January 6, 2014 Property Seizure: Plaintiff claims that numerous items were thrown from his cell to the floor in front of his door. He claims that defendant Baker seized other items and refused plaintiffs request for a confiscation sheet. Plaintiff also complains that his administrative remedies were denied for frivolous reasons and without justification. The uncontroverted evidence, however, shows that defendants followed policy in searching and confiscating property, and that they had valid bases for denying administrative remedies.
. January 9, 2014 Complaint about Lack of Access to the Courts: Plaintiff advised defendant Howard that because plaintiffs legal materials were still being stored in the office, his right to access to the courts was being hindered and restricted. Defendant Howard did not return plaintiffs legal materials that day, failed to tell his superiors that defendant Baker had violated plaintiffs constitutional rights, and failed to intervene in the allegedly unconstitutional deprivation.
. January 13, 2014 Return of Property: Defendant Howard returned plaintiff s property. Plaintiff claims without support that this was only because plaintiff told defendant Howard that he was going to file a civil rights complaint. Plaintiff also claims that several items were missing, but that defendant Howard denied his request for a property confiscation sheet. Again, however, defendants have presented evidence indicating that they followed procedure, and that if a confiscation sheet was not given, the reason was justified by policy.
. Late January 2014 Meeting with Defendants Maye and Baker: At this meeting, defendants Maye and Baker attempted to work out problems with plaintiff. They both deny telling plaintiff during the meeting that he should stop using the administrative remedies process. They also deny threatening plaintiff with disciplinary action, transfers, work detail changes, or other methods of retaliation.
. January 30, 2014 Frivolous Rejections, Cell Trashing: Plaintiff visited defendant Baker to retrieve administrative remedies responses. According to plaintiff, his claims were frivolously rejected and had been backdated. He states that defendant Baker refused to give plaintiff forms to appeal the rejections. An hour later, plaintiff claims that his cell was in disarray. He claims that he was targeted, to pressure him into abandoning his requests for administrative remedies. Once again, however, plaintiffs unsupported allegations are countered by defendants' evidence that they followed procedure when denying grievances. They have further submitted affidavits, in which they state that they do not deny or impede the access to the administrative remedy process; they would not retaliate against an ...

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