Ishman v. Ballard

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MICHAEL EMMANUEL ISHMAN, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-893-G

)

DEENA BALLARD, et al., )

)

Defendants. )

ORDER

This matter comes before the Court for review of the Report and Recommendation

(Doc. No. 30) issued by United States Magistrate Judge Shon T. Erwin pursuant to 28

U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se and proceeding

in forma pauperis, has brought this action under 42 U.S.C. § 1983, alleging violations of

his constitutional rights by two Defendants. See Am. Compl. (Doc. No. 26).

On screening, Judge Erwin has recommended partial dismissal of Plaintiff’s claims

for failure to state a claim upon which relief can be granted. See R. & R. at 19; 28 U.S.C.

§§ 1915(e)(2)(B)(ii), 1915A(b)(1). On February 27, 2019, Plaintiff filed a timely objection

to the Report and Recommendation. See Pl.’s Obj. (Doc. No. 31). Plaintiff’s objection

triggers de novo review by this Court of those portions of the Report and Recommendation

to which objection is made. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th

Cir. 1996); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Issues or claims raised for the

first time in an objection, however, are waived. Marshall v. Chater, 75 F.3d 1421, 1426

(10th Cir. 1996).

Judge Erwin liberally construed Plaintiff’s allegations as asserting claims under the

Eighth and Fourteenth Amendments based on: (1) denial of access to courts; and (2)

incarceration in restrictive housing (i.e., segregated confinement).1 See R. & R. at 7.

I. Official-Capacity Claims for Monetary Damages

Judge Erwin concluded that Defendants—both of whom are state employees—

enjoy Eleventh Amendment immunity insofar as Plaintiff seeks monetary damages against

them in their official capacities. See R. & R. at 8-9 (collecting authorities). Plaintiff does

not challenge this conclusion. The Court adopts Judge Erwin’s recommendation to dismiss

Plaintiff’s official-capacity claims to the extent monetary damages are sought. See 28

U.S.C. §§ 1915(e)(2)(B)(iii), 1915A(b)(2).

II. Claim for Denial of Access to Courts

Plaintiff alleges that he was deprived of his constitutional right to access the courts

when he was denied permission to use the prison’s law library in order to assist his attorney

with Plaintiff’s criminal jury trial. Judge Erwin identified two bases for dismissing this

claim for denial of Plaintiff’s right of access to the courts. First, Judge Erwin noted that “a

criminal defense is not the type [of] case which is afforded constitutional protection in the

form of access to a law library.” R. & R. at 11. Second, Judge Erwin concluded that

Plaintiff’s representation by counsel “provides a ‘constitutionally acceptable alternative to

a prisoner’s demand to access a law library.’” Id. (quoting United States v. Taylor, 183

F.3d 1199, 1204 (10th Cir. 1999)).

1 In his Objection, Plaintiff does not meaningfully challenge Judge Erwin’s

characterization of his claims.

As Judge Erwin explained, an inmate’s right to access the courts is not unlimited.

The Court agrees that Plaintiff has not plausibly alleged a violation of a constitutional right

to access the courts. See Taylor, 183 F.3d at 1204; Carrier v. Lundstedt, No. 13-cv-02933-

PAB-CBS, 2014 WL 8103198, at *9 (D. Colo. Dec. 22, 2014) (R. & R.) (“[A]ny claim that

[the prisoner-plaintiff] was denied access to the courts is defeated by his representation by

counsel in his criminal cases.”), adopted, 2015 WL 1041835 (D. Colo. Mar. 4, 2015); Johns

v. Coosa Cty. Jail, No. 2:11-CV-615-WHA (WO), 2011 WL 4005320, at *2 (M.D. Ala.

Aug. 18, 2011) (R. & R.) (“While Plaintiff may desire to take a more active role in his

pending criminal proceedings, such is insufficient to demonstrate a lack of access to the

courts.”), adopted, 2011 WL 4005318 (M.D. Ala. Sept. 8, 2011).

In his Objection, Plaintiff now contends that access to a law library would have

enabled him “to assist his appeal attorney with his appeal.” Pl.’s Obj. at 3, 6. This

contention, raised for the first time in Plaintiff’s Objection, has been waived. See Marshall,

75 F.3d at 1426.

III. Claims Against Defendant Ballard for Incarceration in Restrictive Housing

In his Amended Complaint, Plaintiff alleges that Defendant Deena Ballard ordered

prison official Sgt. Hamilton “not to give Plaintiff a Request to Staff form.” Am. Compl.

at 4. However, the “Request to Staff” form sought by Plaintiff was “for access to [the]

prison law library.” Id. Plaintiff does not allege that Defendant Ballard took any action

that prevented him from challenging his placement in restrictive housing.

Judge Erwin recommends that any restrictive-housing claim against Defendant

Ballard should be dismissed because Plaintiff does not allege that this Defendant “was in

any way responsible for placing him in restrictive housing.” R. & R. at 12. The Court

agrees.2

IV. Claims Against Defendant Braggs for Incarceration in Restrictive Housing

Defendant Jerold Braggs Jr., on the other hand, is alleged to be “the reason why

Plaintiff was administ[ra]tive[ly] segregated for 115 days.” Am. Compl. at 6. Judge Erwin

construed Plaintiff’s allegations related to his placement in restrictive housing as asserting:

(1) a claim for unconstitutional conditions of confinement in violation of the Eighth

Amendment; and (2) a claim for violation of Plaintiff’s right to procedural due process

under the Fourteenth Amendment. See R. & R. at 12.

A. Conditions-of-Confinement Claim

As detailed in the Report and Recommendation, an Eighth Amendment claim

requires allegations: (1) that prison conditions posed “a substantial risk of serious harm” to

the plaintiff’s health or safety (the “objective component”); and (2) that the defendant acted

2 In his Objection, Plaintiff references an “occasion . . . in which he spoke with Defendant

Ballard about the process” to “challenge his conditions of confinement to the restrictive

unit.” Pl.’s Obj. at 7. According to Plaintiff, Defendant Ballard “told [Plaintiff] he must

place his grievance upon a Request to Staff (RTS)” and that, immediately thereafter, she

“gave an order telling Sgt. Hamilton ‘Don’t provide Mr. Ishman with any RTS.’” Id.

Plaintiff submits that, by ordering Sgt. Hamilton to withhold RTS forms from him,

Defendant Ballard “hindered Plaintiff’s ability to challenge the cause of being placed in

restrictive housing.” Id.; see also id. at 8. Because Plaintiff advances this theory of liability

for the first time in his Objection, it is waived. See Marshall, 75 F.3d at 1426. Further, to

the extent Plaintiff now attempts to hold Defendant Ballard liable for her treatment of his

housing-related grievances, he cannot show an entitlement to relief, as “there is no

independent constitutional right to state administrative grievance procedures,” and “the

state’s voluntary provision of an administrative grievance process” does not “create a

liberty interest in that process.” Boyd v. Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011).

with “deliberate indifference” (the “subjective component”). Verdecia v. Adams, 327 F.3d

1171, 1175 (10th Cir. 2003) (internal quotation marks omitted).

Plaintiff alleges that, while in restrictive housing, he was confined to his cell unless

a lieutenant or higher-ranking officer was available to unlock his door and that, if such an

officer was not available, there was no “recreation (shower & access to unit phone).” Am.

Compl. at 2. Judge Erwin correctly concluded that these allegations do not reflect an actual

deprivation of recreation or access to shower, the phone, or any other privilege, and are

therefore insufficient to satisfy the objective component of Plaintiff’s claim.3 See R. & R.

at 15. In his objection, Plaintiff does not meaningfully challenge Judge Erwin’s conclusion

regarding his Eighth Amendment claim. Instead, he merely repeats the allegations from

his Amended Complaint, which were considered by Judge Erwin and found insufficient to

state a claim. Accordingly, the Court adopts Judge Erwin’s recommendation to dismiss

Plaintiff’s Eighth Amendment claim against Defendant Braggs.

B. Procedural Due Process Claim

Because the Amended Complaint does not specify whether Plaintiff was placed in

segregated confinement in the capacity of pretrial detainee or of convicted prisoner, Judge

3 Moreover, only a serious deprivation would be sufficient to satisfy the objective prong of

the analysis. See, e.g., Brown v. Lamanna, 304 F. App’x 206, 207 (4th Cir. 2008) (noting

that an inmate asserting an Eighth Amendment violation based on lack of recreation “must

show . . . a complete denial for an extended period of time”); accord Ajaj v. United States,

293 F. App’x 575, 584 (10th Cir. 2008) (finding that one-year deprivation of outdoor

exercise “[was] not sufficiently serious to implicate the Eighth Amendment”); Fantone v.

Herbick, 528 F. App’x 123, 128 n.5 (3d Cir. 2013) (holding that denial of phone privileges

for 46 days did not satisfy objective component); Richmond v. Settles, 450 F. App’x 448,

455 (6th Cir. 2011) (concluding that a denial of shower for six days is not actionable under

the Eighth Amendment).

Erwin analyzed Plaintiff’s due process claim under the standards applicable to each. See

R. & R. at 13, 15.

1. Convicted Prisoner

As noted by Judge Erwin, convicted prisoners retain only a narrow range of

protected liberty interests. See R. & R. at 16. To establish an actionable deprivation of

liberty, a prisoner must demonstrate that his confinement “imposes atypical and significant

hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515

U.S. 472, 484 (1995). Judge Erwin recommends dismissal of Plaintiff’s due process

claim—insofar as Plaintiff asserts such claim as a convicted prisoner—on the ground that

Plaintiff’s allegations of placement into segregated confinement with “no legitimate basis”

do not establish “atypical and significant hardship.” R. & R. at 17.

In his objection, Plaintiff directs the Court to two cases, each involving a due process

claim based on segregated confinement: Welch v. Bartlett, 196 F.3d 389 (2d Cir. 1999),

and Colon v. Howard, 215 F.3d 227 (2d Cir. 2000). See Pl.’s Obj. at 2. In Welch, the

Second Circuit reversed an award of summary judgment for the defendant, holding that the

district court erred by failing to factually compare the conditions of the segregated housing

unit with those experienced by prisoners in the general population. Welch, 196 F.3d at 393.

The Second Circuit also questioned the district court’s conclusion that a 90-day period of

segregated confinement was not “atypical” under Sandin. Id. at 394. In Colon, the Second

Circuit—emphasizing “that the duration of [segregated] confinement is a distinct factor

bearing on atypicality and must be carefully considered”—held that a 305-day period of

segregated confinement was “a sufficient departure from the ordinary incidents of prison

life to require procedural due process protections under Sandin.” Colon, 215 F.3d at 231.

As in Welch, the Tenth Circuit’s own precedents establish that Sandin’s

“atypicality” standard is necessarily “fact-driven,” requiring an “assessment that accounts

for the totality of conditions presented by a given inmate’s sentence and confinement.”

Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012) (internal quotation marks omitted).

Accordingly, the Tenth Circuit has held “that a district court errs in sua sponte dismissing

a prisoner’s due process claim under § 1915 if it does not have sufficient evidence before

it to ‘fully address both the duration and degree of the plaintiff's restrictions as compared

with other inmates.’” Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) (collecting

cases). And, as in both Welch and Colon, the Tenth Circuit has recognized that a “a lengthy

period of segregation . . . may itself be atypical and significant.” Id. (collecting cases).

The Court concludes that, accepting his allegations as true, Plaintiff has adequately

asserted that his placement into segregated confinement for 115 days, which was ordered

despite a lack of “any misconduct write-ups or history of battery on inmates or prison

guards,” imposed “atypical and significant hardship” on Plaintiff in relation to the ordinary

incidents of prison life. Am. Compl. at 2, 5; Sandin, 515 U.S. at 484; see also Kay v. Bemis,

500 F.3d 1214, 1217-18 (10th Cir. 2007); cf. Bryson v. Gonzales, 534 F.3d 1282, 1286

(10th Cir. 2008) (noting that satisfying Federal Rule of Civil Procedure 8(a) does not

require that the pleading’s factual allegations themselves be plausible—only that “relief

must follow from the facts alleged”). Therefore, the Court declines Judge Erwin’s

recommendation to dismiss Plaintiff's relevant due process claim—insofar as Plaintiff

asserts such claim as a convicted prisoner—at this early stage in the proceedings.

2. Pretrial Detainee

In contrast to convicted prisoners, pretrial detainees may not be punished prior to a

lawful conviction. See Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 (10th Cir. 2005).

Judge Erwin correctly concluded that Plaintiff has sufficiently alleged that, as a pretrial

detainee, he was placed in segregated confinement as a form of punishment in violation of

the Fourteenth Amendment.

CONCLUSION

It is therefore ORDERED that the Report and Recommendation (Doc. No. 30) is

ADOPTED in part and DECLINED in part. The following claims are dismissed without

prejudice: (i) all official-capacity claims for money damages against both Defendants; (ii)

all claims against both Defendants alleging a denial of court access; (iii) all claims against

both Defendants alleging violation of the Eighth Amendment; and (iv) all claims against

Defendant Ballard relating to Plaintiff's placement in restrictive housing. Plaintiff's due

process claims against Defendant Braggs relating to Plaintiff's placement in restrictive

housing shall not be dismissed at this time. The case is again referred to Judge Erwin for

further proceedings consistent with this order and the initial case referral.

IT ISSO ORDERED this 24th day of July, 2019.

Venke 8, Madea

eslet dion

United States District Judge