United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
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).
Response to Show Cause Order
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
Counts I and II
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).
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.
Loss of Good Time Credits
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).
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.
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).
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.
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, ...