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Wiggins v. Sisco

United States District Court, D. Kansas

October 31, 2017

D. SISCO, et al., Defendants.



         This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. By order of September 8, 2017, U.S. Magistrate Judge David J. Waxse directed Plaintiff to show cause to the undersigned why Counts I, II, III, and IV of Plaintiff's complaint should not be dismissed for failure to state a claim upon which relief may be granted. Before the Court is Plaintiff's response (Doc. #15) to the show cause order, as well as two motions and an objection (Doc. #5, 6, and 18).

         I. Response to Show Cause Order

         Plaintiff filed a timely response (Doc. #15) to the Court's order to show cause. In that pleading, Plaintiff objects to the Court's findings for each of the four counts that are subject to dismissal. After considering Plaintiff's response and the additional information he provided, the Court finds that Counts I, II, III, and IV should be dismissed.

         A. Counts I and II

         Counts I and II allege Plaintiff was deprived of his due process rights in connection with a disciplinary investigation and hearing. The Due Process Clause of the Fourteenth Amendment prohibits the government from depriving an individual of life, liberty, or property without due process of law. U.S. Const. amend. XIV. “To determine whether a plaintiff was denied procedural due process, we engage in a two-step inquiry: (1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process?” Washington v. Unified Gov't of Wyandotte Cty., 847 F.3d 1192, 1201 (10th Cir. 2017) (internal quotation marks omitted).

         Judge Waxse correctly found, based on the facts alleged in the Complaint and Supreme Court precedent, that Plaintiff had not shown that a protected interest was at stake because he did not show either that he was subjected to atypical and significant hardship in relation to the ordinary incidents of prison life or that the disciplinary action affected the duration of his confinement. See Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). In his response, Plaintiff makes three arguments for why he has a protected liberty interest. First, he clarifies that he was deprived of good time credits as a result of the disciplinary action, resulting in Plaintiff's term of confinement being extended by 60 days. Second, Plaintiff argues that the Prison Rape Elimination Act (“PREA”) confers rights that entitle him to constitutional due process protection. Third, Plaintiff claims he was classified as a sexual predator as a result of the disciplinary proceeding. He argues this classification implicates a protected liberty interest.

         i. Loss of Good Time Credits

         “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, an inmate subject to disciplinary sanctions that include the loss of good time credits must receive (1) twenty-four-hour advanced written notice of the charges against him, id. at 563-64; (2) a written statement by the fact finder as to the evidence relied on and the reasons for the action, id. at 564-65; (3) an opportunity to call witnesses and present documentary evidence where doing so “will not be unduly hazardous to institutional safety or correctional goals, ” id. at 566; (4) assistance at the hearing if he is illiterate or if the matter is complex, id. at 570; and (5) a sufficiently impartial fact finder, id. at 570-71. A revocation of good time must also be “supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985).

         While Plaintiff's loss of good time credits does implicate a protected liberty interest entitling him to due process, unfortunately his challenge to the disciplinary proceedings is not properly raised in this § 1983 action. Instead, challenges to disciplinary proceedings that result in the loss of good time credits are properly litigated in a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Preiser v. Rodriguez, 411 U.S. 475, 488-89 (1973). This is because a favorable outcome would result in the restoration of credit and a shorter sentence. Id. A prerequisite to filing a habeas corpus petition in federal court is that the petitioner must have properly and fully exhausted all remedies available in the state courts. See 28 U.S.C. § 2254; Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994). It does not appear that Plaintiff's claims have been presented to the state district and appellate courts.

         Section 1983 is also not applicable to “challenges to punishments imposed as a result of prison disciplinary infractions, ” unless the disciplinary conviction has already been invalidated. Cardoso v. Calbone, 490 F.3d 1194, 1199 (10th Cir. 2007). The U.S. Supreme Court has held that when a state prisoner seeks damages in a § 1983 lawsuit based on an allegedly invalid conviction, “the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). In Edwards v. Balisok, 520 U.S. 641, 648 (1997), the Supreme Court extended the principles of Heck to prison disciplinary proceedings and the loss of good time credit. Cardoso, 490 F.3d at 1199; see also Mariani v. Stommel, 251 F. App'x 536, 541 (10th Cir. 2007) (unpublished).

         Plaintiff seeks to challenge the validity of the disciplinary proceeding and sanctions against him that included the loss of good time. It is clear from his allegations that a judgment in his favor here would necessarily imply the invalidity of that disciplinary conviction. Since Plaintiff has not demonstrated that his disciplinary conviction has already been invalidated, Counts I and II of this § 1983 complaint are subject to dismissal as premature and barred by Heck and Balisok. See Cardoso, 490 F.3d at 1199.

         ii. PREA Violations

         Plaintiff also argues that Defendants violated provisions of the PREA and that these violations should entitle him to recover in this civil rights action. “Section 1983 imposes liability on anyone who, under color of state law, deprives a person ‘of any rights privileges, or immunities secured by the Constitution and laws.'” Blessing v. Freestone, 520 U.S. 329, 340 (1997). “In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Id. (emphasis in original) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989)). The PREA, 42 U.S.C. § 15601-15609, “authorizes the reporting of incidents of rape in prison, allocation of grants, and creation of a study commission, ” but there is nothing in the PREA to indicate that it created a private right of action, enforceable under § 1983. Porter v. Jennings, No. 1:10-cv-01811-AWI-DLB PC, 2012 WL 1434986, at *1 (E.D. Cal. Apr. 25, 2012); see also Burke v. Corr. Corp. of Am., No. 09-3068-SAC, 2010 WL 890209, at *2 (D. Kan. Mar. 10, 2010); Moorman v. Herrington, 2009 WL 2020669 (W.D. Ky. 2009)(unpublished opinion)(citing cases from other jurisdictions); De'lonta v. Clarke, No. 7:11-cv-00483, ...

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