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Wiggins v. Sisco

United States District Court, D. Kansas

September 8, 2017

JOHNNY CLINT WIGGINS, Plaintiff,
v.
D. SISCO, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE AND REQUIRING MARTINEZ REPORT AS TO COUNT V

          DAVID J. WAXSE, U.S. MAGISTRATE JUDGE

         Plaintiff Johnny Clint Wiggins, a state prisoner appearing pro se, brings this 42 U.S.C. § 1983 civil rights complaint.

         For the reasons discussed below, Plaintiff is ordered to show cause to the Honorable Sam A. Crow why Counts I, II, III, and IV of his complaint should not be dismissed. As for Count V, the Court finds it needs additional information and therefore orders a Martinez report as to the claims made in that count only.

         I. Nature of the Matter before the Court

         Plaintiff's complaint (Doc. #1) contains five (5) counts based on the following allegations. In October of 2015, Plaintiff was housed in the medium security unit at Lansing Correctional Facility (“LCF”) and was working a minimum wage job when another inmate, Mr. Easley, claimed he and Mr. Wiggins had been using methamphetamines for the previous couple of weeks. Mr. Easley also claimed Plaintiff gave him meth in exchange for sexual favors. Plaintiff was moved to the maximum security unit at LCF on October 26, 2015, and placed on segregation pending investigation status upon the order of Defendant Andrew Lucht, a captain at LCF.

         On October 27, 2015, Plaintiff met with Defendants Sisco and Bailey, EAI special agents at LCF. The interview was audiotaped, and Plaintiff agreed to give a statement. He denied all of Mr. Easley's allegations. Plaintiff offered to provide a urine sample, but no sample was taken. Defendants Sisco and Bailey checked Plaintiff for needle tracks and found none. They told Plaintiff that DNA had been found on Mr. Easley and that Plaintiff would have to be held in segregation until the DNA test results were returned.

         Plaintiff remained in segregation on pending investigation status until November 24, 2015, when a Segregation Review Board hearing was held. Plaintiff was not allowed to be present at the hearing. On November 25, 2015, Plaintiff was informed that the Board had changed his status to Other Security Risk (“OSR”), and he was to be transferred to Hutchinson Correctional Facility (“HCF”) per the request of Defendants Sisco and Bailey.

         On December 1, 2015, Plaintiff's transfer to HCF was cancelled by Warden Pryor on the grounds that there had been no Disciplinary Report filed against Plaintiff and therefore there was no proof he had committed an infraction. Two days later, allegedly in retaliation for Plaintiff getting his transfer stopped, Defendant Sisco issued a Disciplinary Report charging Plaintiff with sexual activity in violation of KAR 44-12-1314. This report was filed out of time per Kansas regulations. A disciplinary hearing was scheduled for December 29, 2015.

         Prior to the hearing, Plaintiff filed a request for witnesses, a motion for appointment of limited staff assistance, and a request for information on PREA Standard 115.787. Plaintiff met with Defendant Wildermuth the day of the hearing and was lead to believe he would be attending. However, the hearing was held without Plaintiff. Defendant Wildermuth acted as his “proxy.” Plaintiff was found guilty of the charge of sexual activity and was again scheduled for transfer to HCF.

         On January 13, 2016, Plaintiff was transferred to HCF and placed in segregation on OSR status. A Segregation Review Board hearing held on January 26, 2016, found no justifiable reason for continued segregation, and Plaintiff was moved to the general population.

         Plaintiff complains that the cells at HCF are 5' by 9' with approximately 15 square feet of open floor space. He is confined for 22.5 hours per day. The cells have poor ventilation, poor heating and cooling, and there is gray dust everywhere. As a result of these conditions, Plaintiff alleges he suffers from constant sinus headaches, sneezing, and coughing, and the inability to exercise in his cell, which contributes to back pain and bone, muscle, and mental degeneration.

         Plaintiff further complains that his sister sent him a copy of a book he wrote, which was confiscated upon receipt in the mailroom of HCF on April 12, 2016. Plaintiff received a censorship notice stating the book was confiscated because it contained “information on staff, weapons and security threat groups.” Doc. 1, p. 11. The notice did not identify specific pages or content. Plaintiff followed the directions on the censorship notice and appealed. He did not receive a response to his appeal and has never received the book.

         As Count I of his complaint, Plaintiff claims Defendants Sisco, Bailey, and Lucht violated his Fourteenth Amendment due process rights by failing to collect and test his urine to be used in Plaintiff's defense during the disciplinary hearing process. As Count II, Plaintiff claims Defendant Hunt violated his Fourteenth Amendment due process rights by failing to allow Plaintiff to be present at his disciplinary hearing, to present evidence, to testify, to call witnesses, and to cross examine witnesses. He claims that Defendant Sisco violated his rights by filing a disciplinary report out of time, and that Defendants Pryor and Goddard violated his due process rights by simply rubber-stamping Defendant Hunt's decision. As Count III, Plaintiff claims Defendants Sisco, Bailey, Wildermuth, and Hunt violated his Fourteenth Amendment due process rights by conspiring to manufacture a bogus disciplinary report for the sole purpose of getting Plaintiff transferred from LCF to HCF. As Count IV, Plaintiff claims Defendants Goddard, Cline, and Schnurr violated his Eighth Amendment rights by subjecting him to the conditions at HCF. Finally, as Count V, Plaintiff claims Defendants Cline, Schnurr, and Langford violated his First, Fifth, and Fourteenth Amendment rights by censoring and confiscating Plaintiff's book. Plaintiff's request for relief includes declaratory relief, compensatory damages, and punitive damages.

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

         To survive this review, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying the Twombly standard, the Court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10thCir. 2011).

         While a pro se plaintiff's complaint must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se status does not relieve the plaintiff of “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels ...


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