# Ishman v. Ballard

> District Court, W.D. Oklahoma · July 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10387657

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** July 24, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10387657

## How later opinions describe it (automated extraction)

- finding that one-year deprivation of outdoor exercise “[was] not sufficiently serious to implicate the Eighth Amendment”
- holding that denial of phone privileges for 46 days did not satisfy objective component
- 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”
- concluding that a denial of shower for six days is not actionable under the Eighth Amendment
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387657. Public record. Not legal advice.