United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE.
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).
Heck bar (Counts I, II, and III)
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.
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).
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
Retaliation claim (Counts I, II, III)
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).
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.
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.
Equal protection (Counts I, II, III)
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.
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