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Wiggins v. Sisco

United States District Court, D. Kansas

February 23, 2018

D. SISCO, et al., Defendants.



         This matter is before the Court on Plaintiff's Motion to Reconsider (Doc. #33). Plaintiff asks the Court to reconsider its order dated October 31, 2017 (Doc. #19), dismissing Counts I, II, III, and IV of Plaintiff's Complaint for failure to state a claim on which relief may be granted. As the order did not adjudicate all of Plaintiff's claims, it did not result in the entry of judgment and Plaintiff's motion is considered a general motion directed at the Court's inherent power to reopen any interlocutory matter at its discretion. See Price v. Philpot, 420 F.3d 1158, 1167 & n. 9 (10th Cir. 2005); Fed.R.Civ.P. 54(b).

         I. Discussion

         A. Heck bar (Counts I, II, and III)

         Mr. Wiggins argues in his motion that he did not in fact lose any good time credits as a result of the disciplinary action. He alleges he merely lost the opportunity to earn 60 days of good time. Mr. Wiggins then argues that because he did not lose any good time credits, Heck should not apply and he should be allowed to proceed on Counts I, II, and III of his Complaint.

         If Mr. Wiggins did not lose good time credits, Heck does not bar his claims. See Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam) (“Heck's requirement to resort to state litigation and federal habeas before § 1983 is not, however, implicated by a prisoner's challenge that threatens no consequence for his conviction or the duration of his sentence.”); see also Requena v. Roberts, 552 Fed.Appx. 853, 856 n. 4 (10th Cir. 2014).

         However, without the loss of good time, Plaintiff's case returns to the position it was in when the Court issued the order to show cause: Mr. Wiggins's Complaint does not show that he had a protected liberty interest as stake. Punishments other than loss of good time constitute deprivations of liberty requiring due process safeguards only if they impose “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 487 (1985). According to Plaintiff, “[t]he only sanctions that were imposed by the Disciplinary Court on December 29, 2015, was, 45 days of disciplinary segregation and 60 days of privilege restrictions.” Doc. #33 at 2. These are not punishments that impose an atypical and significant hardship in relation to the ordinary incidents of prison life. As a result, Mr. Wiggins was not entitled to due process safeguards at his disciplinary hearing. The Court agrees with Mr. Wiggins that he was clearly not provided with due process at the hearing. However, based on his allegations, he was not entitled to such process.

         B. Retaliation claim (Counts I, II, III)

         Upon reconsideration, the Court finds that it needs additional information from appropriate officials of the Lansing Correctional Facility (LCF) to properly screen Plaintiff's retaliation claim. To state a retaliation claim, a prisoner must allege that he engaged in protected conduct, that the defendants took adverse action against him as a result, and that there was a causal connection between the protected conduct and the adverse action. Leek v. Miller, 698 F. App'x 922, 925 (10th Cir. 2017) (citing Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007)). The adverse action taken must be sufficient to deter or “chill” a person of ordinary firmness from exercising his constitutional rights. Id. However, the adverse action does not need to rise to the level of an independent constitutional violation to support a retaliation claim, nor is it required to impose an atypical and significant hardship as is required to support a due process claim. Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001).

         In Mr. Wiggins's case, he alleges the defendants brought a false disciplinary charge against him, failed to conduct more than a minimal investigation to support the charge, held a hearing on the charge without allowing him to be present, had Defendant Wildermuth act as his proxy at the hearing even though he had lodged numerous complaints against her in the past and she had been involved in investigating the charge, changed his security classification causing him to lose his job, placed him in segregation for three months, caused him to lose the prison dog he cared for, labeled him as a sexual predator, and transferred him away from LCF. Mr. Wiggins claims this was done in retaliation for his filing of numerous grievances against LCF officials, for attempting to expose corruption at LCF, and for attempting to get criminal charges filed against Defendant Wildermuth for violation of his religious rights under state law. While Mr. Wiggins does not have an independent constitutional right to remain in the general population or to be confined at any particular facility or to a particular job or to have a dog, he does have a right to file grievances and to complain about staff members without being retaliated against. See Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991); Leek, 698 F. App'x at 925.

         The Court finds that the proper processing of Plaintiff's allegations of retaliation cannot be achieved without additional information from appropriate officials of LCF. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Accordingly, the Court orders the appropriate officials to prepare and file a Martinez report. Once the report and Defendants' answers have been received, the Court can properly screen Plaintiff's retaliation claim under 28 U.S.C. § 1915.

         C. Equal protection (Counts I, II, III)

         Mr. Wiggins also alleges in his motion that the Court failed to address his equal protection claims. Mr. Wiggins mentions equal protection in his Complaint, but he did not elaborate beyond saying his “rights to due process and equal protection of the law . . . guaranteed to the plaintiff under the 14th Amendment” were violated. He alleges here that he had the right to be “treated equally with the alleged accuser by the investigative agents.” Doc. #33 at 4.

         To state an equal protection claim, a plaintiff must show the government treated him differently that others who were similarly situated. Penrod v. Zaravas, 94 F.3d 1399, 1406 (10thCir. 1996). “[T]he Equal Protection Clause does not forbid differential treatment per se; rather, ‘[i]t simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.'” Burnett v. Leatherwood, 557 Fed.Appx. 739, 743 (10th Cir. 2014) (quoting Taylor v. Roswell Ind. Sch. Dist.,713 F.3d 25, 53-54 (10th Cir. 2013)). “[T]o assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them.” Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011) (citing Barney v. Pulsipher,143 F.3d 1299, 1312 (10th Cir. 1998)). And where, as here, the challenged government action does ...

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