Islam v. Phegley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ABDUL ISLAM, a/k/a . )

KEITH L. KELLY, )

Plaintiff,

v. No. 4:21-CV-551-PLC

RICHARD PHEGLEY, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court on self-represented plaintiff Abdul Islam’s (a/k/a Keith L.

Kelly) application to proceed in the district court without prepaying fees or costs. At the time of

filing his complaint, plaintiff was incarcerated at Eastern Reception, Diagnostic and Correctional

Center (““ERDCC”). Having reviewed the motion and the financial information submitted in

support, the Court will grant the motion.! Additionally, for the reasons discussed below, the Court

will dismiss without prejudice plaintiffs complaint.

Legal Standard on Initial Review

Prior to service on defendants, this Court is required to review a complaint filed without

payment of the filing fee and must dismiss it if it is frivolous, malicious, or fails to state a claim

upon which relief may be granted. 28 U.S.C. § 1915(e)(2). An action is frivolous if it “lacks an

arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action

fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a

_ | Because plaintiff is no longer incarcerated, the Court will waive plaintiff's initial partial filing

fee. See 28 U.S.C. § 1915(b). .

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007).

A claim is facially plausible when the plaintiff “pleads factual content that allows the

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Igbal, 556 U.S. 662, 678 (2009). Although a plaintiff need not allege facts in painstaking detail,

the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Jgbal, 556 U.S. at 678. Determining whether a complaint states a

plausible claim for relief is a context-specific task that requires the reviewing court to draw upon

judicial experience and common sense. Jd. at 679. The court must assume the veracity of well-

pleaded facts, but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Jd. at 678 (citing Twombly, 550 U.S. at 555).

This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429

U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court

should “construe the complaint in a way that permits the layperson’s claim to be considered within

the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone

v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints must allege facts

which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286

(8th Cir. 1980). Federal courts are not required to assume facts that are not alleged, Stone, 364

F.3d at 914-15, nor are they required to interpret procedural rules so as to excuse mistakes by those

who proceed without counsel. See McNeil y. United States, 508 U.S. 106, 113 (1993).

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The Complaint

Plaintiff brings this prisoner civil rights action under 42 U.S.C. § 1983 against defendants

Richard B. Phegley (Correctional Officer (“CO”), ERDCC), Brian Boyer (Functional Unit

Manager (“FUM”), ERDCC), Daniel Jackson (Investigator, ERDCC), Tim Freeman, Matt Ramon,

Jason Pulliam, Jason Turner, Brett Renk, Amy Pratt, Nathan Sumpter, and the Missouri

Department of Corrections (““MDOC”). He specifies that he sues Richard Phegley and Daniel

Jackson in their official capacities only. He does not specify in what capacity he sues the other

defendants.

Plaintiff states that on October 23, 2020, at ERDCC’s minimum security unit, CO Phegley

issued him a conduct violation for possession of a controlled substance. Because of his conduct

violation, plaintiff was removed from the housing unit and placed in administrative segregation

for forty days. He alleges he was placed in administrative segregation “without completion of my

due process rights in accordance with MDOC policy and procedures.”

Attached to his complaint, plaintiff files his conduct violation report, corrective action

report, MDOC’s classification hearing forms, MDOC’s board of probation and parole forms, his

drug chemistry certified report, an information resolution request (“IRR”), and an “affidavit of

facts.” According to these documents, on October 23, 2020, defendant Phegley reported

observing plaintiff attempting to roll a prison-made cigarette. Upon further inspection, Phegley

noticed that the contents of the cigarette “did not look like tobacco.” He sent the contraband to

Investigator Jackson, who field tested the substance.

2 Pursuant to Federal Rule of Civil Procedure 10(c), the Court will construe all exhibits to the

complaint as part of the complaint for all purposes.

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Upon the field test, defendant Jackson determined the substance tested positive for

marijuana and components of synthetic marijuana. CO Phegley submitted the substance to the

MDOC lab for further drug chemistry testing. See ECF 1-4,

Plaintiff's corrective action report indicates that he understood his rights to a conduct

violation and that he did not plead guilty or waive his right to a hearing. The findings of the

corrective action report state that Investigator Jackson found the unknown substance tested

positive for marijuana and pyrene marijuana during the field test. After a hearing, the hearing

officers recommended that plaintiff have a thirty-day living area restriction from October 29 to

November 27, 2020, that he be referred to administrative segregation, and that the contraband be

confiscated and disposed of per policy. See ECF Nos. 1-5, 1-6 at 1. The corrective action report

signed by plaintiff, and he indicated that he had “been informed of the evidence relied on and

the findings and recommendations.” Jd. Plaintiff's report also states that he had received three

conduct violations in the past six months and six conduct violations in the past year.

On November 24, 2020, plaintiff again had a classification hearing. The hearing officers

recommended that he continue in administrative segregation, awaiting the outcome of the

investigation, that is, the results of the drug chemistry report. See ECF No. 1-6 at 2. On December

4, 2020, plaintiff had his final classification hearing. At this time, the investigation had been

completed. The hearing officers recommended that plaintiff be released from administrative

segregation into the general population. The drug chemistry report stated that “no controlled

substance was detected on the [cigarette rolling] paper.” ECF No. 1-8 at 2. The Missouri State

Highway Patrol, Crime Laboratory Division, conducted the test from January 11 to 18, 2021 on

the test sample it received from ERDCC on November 3, 2020. Id.

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On April 19, 2021, after plaintiff received the results of the drug chemistry test, he filed an

IRR asking that his conduct violation be overturned and that the information be forwarded to his

parole board. Plaintiff's conduct violation for a 11.1 (controlled substance) was modified to a

conduct violation for a 24.1 (contraband). See ECF No. 1-9. Plaintiff was released from custody

on or about June 25, 2021.

Plaintiff states he suffered psychological harm and the loss of liberty during his forty days

in segregation and the additional 120 days he served past his original date of release as calculated

the Missouri Department of Probation and Parole. For relief, he seeks a court order to MDOC “to

change its policy as it relates to control substance testing procedures.” He also seeks damages for

pain and suffering, mental anguish, and wrongful imprisonment, which he calculates at $50,000

for his forty days in administrative segregation and $50,000 in punitive damages.

Discussion

(1) Defendants Boyer, Freeman, Ramon, Pulliam, Turner, Renk, Pratt, Sumpter,

and MDOC □

Plaintiff lists in his case caption defendants Boyer, Freeman, Ramon, Pulliam, Turner,

Renk, Pratt, Sumpter, and MDOC. When asked to specify each defendant in section I.B. of the

complaint, however, plaintiff lists only defendants Phegley and Jackson. In section II, the

Statement of Claim, plaintiff does not refer to any defendants other than defendants Phegley and

Jackson. Based on the attachments to his complaint, it appears that plaintiff simply included as a

defendant any name that appeared on his conduct violation report or classification hearing forms.

Even after full review of plaintiff's attachments, however, the Court is unable to determine why

plaintiff named as defendants Ramon, Pratt, Sumpter, and MDOC. These names appear nowhere

in the record.

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Liability in a § 1983 case is personal. Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir.

2017). In other words, “[g]lovernment officials are personally liable only for their own

misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). As such, § 1983 liability

“tequires a causal link to, and direct responsibility for, the deprivation of rights.” Mayorga v.

Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (quoting Madewell v. Roberts, 909 F.2d 1203, 1208

(8th Cir. 1990)); see also Kohl y. Casson, 5 F.3d 1141, 1149 (8th Cir. 1993) (dismissing plaintiffs

excessive bail claims because none of the defendants set plaintiff's bail, and therefore, “there can

be no causal connection between any action on the part of the defendants and any alleged

deprivation” of plaintiff's rights). To that end, a plaintiff must allege facts connecting the

defendant to the challenged action. See Bitzan v. Bartruff 916 F.3d 716, 717 (8th Cir. 2019).

Because plaintiff has alleged no facts in his complaint connecting defendants Boyer,

Freeman, Ramon, Pulliam, Turner, Renk, Pratt, Sumpter, and MDOC to the challenged actions,

the Court will dismiss these defendants without prejudice pursuant to 28 U.S.C. § 1915(e).

(2) Defendants Phegley and Jackson

As an initial matter, plaintiff has sued defendants Phegley and Jackson in their official

capacities only. In an official capacity claim against an individual, the claim is actually “against

the governmental entity itself’ See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017).

“Section 1983 provides for an action against a ‘person’ for a violation, under color of law, of

another’s civil rights.” McLean vy. Gordon, 548 F.3d 613, 618 (8th Cir. 2008). However, “neither

a State nor its officials acting in their official capacity are ‘persons’ under § 1983.” Will v.

Michigan Dep’t of State Police, 491 US. 58, 71 (1989); see also Calzone v. Hawley, 866 F.3d 866,

872 (8th Cir. 2017) (stating that a “suit for damages against a state official in his official capacity

is a suit against the State, and the State is not a person under § 1983”). Moreover, in the absence

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of a waiver, the Eleventh Amendment bars suit against a state official acting in his or her official

capacity. Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741, 744 (8th Cir. 1998). Because plaintiff

cannot state a claim against defendants Phegley and Jackson acting in their official capacities, the

Court will dismiss the complaint without prejudice.

Even if the Court were to construe plaintiff's complaint liberally, and assume he would

amend to state his claims against defendants Phegley and Jackson in their individual capacities,

the complaint is still subject to dismissal. As to plaintiff’s allegations against defendants Phegley

and Jackson, he states that CO Phegley issued him a conduct violation in error and “removed [him]

from the housing unit and placed [him] in administrative segregation without completion of [his]

due process rights in accordance with MDOC policy and procedures.” Defendant Jackson was the

MDOC investigator who performed the field test on the alleged controlled substance in plaintiff's

possession. Defendant Jackson’s field test found the substance positive for marijuana and

components of synthetic marijuana.

To determine what process is due, the “fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,

424 U.S. 319, 333 (1976). When an inmate is deprived of privileges or placed in special

confinement status as punishment for past misconduct, due process requires a hearing beforehand.

Brown-El v. Delo, 969 F.2d 644, 647 (8th Cir. 1992). Nevertheless, “[pJrison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant

in such proceedings does not apply.” Gonzalez-Perez v. Harper, 241 F.3d 633, 637 (8th Cir. 2001).

To that end, due process requirements include written notice of the charge; a written statement by

the factfinders as to the evidence relied on and the reasons for the disciplinary action; the right of

the inmate to be present, call witnesses, and present documentary evidence; and, in limited

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situations, a counsel substitute. See Wolffv. McDonnell, 418 U.S. 539, 564-70 (1974). “Prison

disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must

often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances.”

Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986). As such, due process is satisfied as long as

“some evidence supports the decision by the prison disciplinary board.” Td.

Based on plaintiff's MDOC classification hearing form, plaintiff was present for a

classification hearing on October 29, 2020 at which time the three hearing officers told him the

reason the hearing, took his statement, had a discussion, summarized their findings, and gave a

recommendation. Unfortunately for plaintiff, the hearing officers found that plaintiff had received

three conduct violations in the past six months and six conduct violations in the past twelve

months. Nothing in the classification hearing report indicates that the officers relied on the positive

field test performed by defendant J ackson. Rather, the report indicates that the officers’ findings

regarding the propensity of plaintiff to commit conduct violations led to their recommendation that

plaintiff be assigned to administrative segregation. Even after the drug chemistry certified report

cleared plaintiff of his more serious conduct violation—possession of a controlled substance—he

was still found to have committed a conduct violation for possession of contraband. Thus,

regardless of the later drug chemistry testing, plaintiff incurred a conduct violation from defendant

Phegley on October 23, 2020 for possession of contraband (i.e., a prison-made cigarette). The

evidence in the record establishes that defendant was afforded all process that was due prior to his

being recommended and assigned to administrative segregation. See ECF No. 1-6.

Additionally, it is well established that there is no federal constitutional liberty interest in

having state officers follow state law or having prison officials follow prison regulations. Phillips

y. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (citing Kennedy v. Blankenship, 100 F.3d 640, 643

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(8th Cir. 1996)); see also Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (failure to follow

prison policy is not basis for § 1983 liability).

After carefully reviewing and liberally construing the complaint, the Court concludes that

plaintiff has not stated a plausible nor viable claim against the defendants Phegley and Jackson

under 42 U.S.C. § 1983. For this reason, plaintiff's complaint must be dismissed for failure to

state a claim.

Accordingly,

‘IT IS HEREBY ORDERED that plaintiff's application to proceed in district court without

prepaying fees or costs is GRANTED. [ECF No. 2]

IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to

issue upon the complaint as the complaint is subject to dismissal pursuant to 28 US.C. §

1915(e)(2)(b)(ii) for failure to state a claim on which relief may be granted.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel is

DENIED as moot. [ECF No. 4]

A separate Order of Dismissal shall accompany this Memorandum and Order.

Dated this ¢¢ 7h day of October, 2021.

hs . fool),

STEPHEN N. LIMBAUGH, JR.

SENIOR UNITED STATES DISTRICT JUDGE

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