CARLOS MURGUIA, District Judge.
Plaintiff Taurean Proch, a former federal inmate proceeding pro se, filed this case against the Bureau of Prisons ("BOP") and ten prison officials, claiming that they violated his constitutional rights in a number of ways: (1) seizure, destruction, and/or theft of his personal and intellectual property; (2) denial of due process and access to the courts; (3) harassment and retaliation for seeking administrative remedies; (4) infliction of cruel and unusual punishment on plaintiff by wrongfully terminating his jobs, threatening and harassing him, and forcing him to sleep on a bare mattress; (5) intentional and negligent infliction of emotional distress; (6) failure to supervise or intervene in constitutional violations; and (7) the BOP's maintenance of a custom or policy of staff misconduct. Defendants moved for summary judgment or dismissal on a number of grounds (Doc. 54). Plaintiff initially failed to respond.
After the court ordered plaintiff to show cause why the motion should not be granted as uncontested, plaintiff asked for additional time to respond. The court granted his request, and eventually, plaintiff responded with a three-page brief. In that brief, plaintiff generally argues that (1) plaintiff cannot access a legal research database to help him research, but the issues presented by defendants require little argument; (2) plaintiff has exhausted all of his administrative remedies; and (3) there are factual disputes in this case that must be resolved. Plaintiff asks the court to incorporate the allegations and evidence from his complaint into his response. But neither plaintiff's complaint nor his response are signed under penalty of perjury, so the court cannot consider plaintiff's allegations as evidence to controvert defendant's submitted evidence. Cf. Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988) ("Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e)."). This failure on plaintiff's part is of critical importance. Defendants moved for summary judgment and asserted qualified immunity. This puts a significant burden on plaintiff to offer evidence in support of his claims. Because plaintiff has not done so, the court accepts as true all of defendants' properly-supported facts. Utilizing these uncontroverted facts, the court grants defendants' motion.
Plaintiff names a number of defendants in his complaint. For ease of reference, defendants, their roles, and their connection to plaintiff's claims are summarized below:
Plaintiff was incarcerated at USP Leavenworth from 2010 through 2016. He alleges that he is entitled to relief for the following incidents. The facts presented below include both properly-supported facts submitted by defendants and unsupported allegations presented by plaintiff. The court presents plaintiff's version of the facts only to give context to his claims. Plaintiff's account lacks any evidentiary support, and therefore is improper for consideration on summary judgment.
Defendants move for dismissal or summary judgment in the alternative. The court considers evidence outside of plaintiff's complaint, and therefore will treat defendants' motion as one for summary judgment.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Where, as here, the plaintiff proceeds pro se, the court construes the pro se filings liberally. Hall v. Doering, 997 F.Supp. 1445, 1451 (D. Kan. 1998) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980)). On the other hand, a plaintiff's pro se status does not relieve him from complying with this court's procedural requirements. Barnes v. United States, 173 F. App'x 695, 697 (10th Cir. 2006) (citations omitted); see also Santistevan v. Colo. Sch. of Mines, 150 F. App'x 927, 931 (10th Cir. 2005) (holding that a pro se litigant must follow the same rules of procedure as other litigants). As noted previously, plaintiff's response includes no admissible evidence or support for his allegations, and the court therefore evaluates the merits of defendants' motion based solely on the evidence presented by defendants.
The Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), requires that inmates exhaust available administrative remedies before filing a lawsuit about prison conditions. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Here, plaintiff has exhausted his available administrative remedies for the following claims:
Plaintiff stated in a conclusory fashion that he has exhausted administrative remedies for all of his claims. But he makes no specific showing, and does not properly controvert defendants' factual statement that is supported by the record. The court therefore determines the above-claims are the only ones plaintiff has exhausted. To the extent that he attempts to bring claims for denial of due process, other cell searches, or reassignment and his loss of job in Facilities, such claims are barred for failure to exhaust.
Plaintiff brings this suit against the BOP and the ten named defendants in their official and individual capacities. For the following reasons, the BOP claims and those against defendants in their official capacities are improper and barred by sovereign immunity.
Plaintiff brings his claims against the ten named defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which provides a cause of action in some cases of constitutional violations by federal agents and employees.
When plaintiffs charge federal officials for wrongdoing while acting in their official capacity, the charges operate as claims against the United States and not the individual defendants. See, e.g., id. at 959, 963 (barring a prisoner's action against the warden and prison psychologist who were acting in their official capacities). The United States is immune to suit unless sovereign immunity has been waived. Atkinson v. O'Neill, 867 F.2d 589, 590. The United States has not waived its sovereign immunity for constitutional torts. See DeHaan v. United States, 3 F. App'x 729, 731 (10th Cir. 2001). The doctrine of sovereign immunity therefore bars plaintiff's constitutional claims against the United States, including the BOP as a federal agency and defendants in their official capacities.
Plaintiff sues defendants Maye and Loftness for failing to properly supervise or intervene in the unconstitutional actions of other staff. Plaintiff also claims that defendant Howard failed to intervene in the constitutional violations of defendant Baker. For the reasons stated below, the court determines that the actions of staff were constitutional, which means that plaintiff's claims for failure to supervise or intervene are not viable.
The court next turns to the Bivens claims against the prison officials in their individual capacities. Qualified immunity protects government officials from individual liability under Bivens unless their conduct "violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Schroeder v. Kochanowski, 311 F.Supp.2d 1241, 1250 (D. Kan. 2004) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Wilson v. Layne, 526 U.S. 603, 609 (1999) (noting that qualified immunity analysis is identical under 42 U.S.C. § 1983 and Bivens). When a defendant raises qualified immunity, the plaintiff must show that (1) the defendant's actions violated a constitutional or statutory right and (2) the right violated was clearly established at the time of the conduct in issue. Schroeder, 311 F. Supp. 2d at 1250. At this point, the burden is on the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000).
The court may consider either prong of the qualified immunity test first. Panagoulakos v. Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, the court will first determine whether plaintiff has shown that defendants violated the Fourth, Fifth, First, or Eighth Amendments, as well as claims of retaliation for exercising his First Amendment Rights.
Plaintiff claims that defendants Maye, Baker, Hartley, Herbig, and others violated his Fourth Amendment rights by searching his cell. But "prisoners are not protected under the Fourth Amendment from unreasonable searches of their prison cells or from the wrongful seizure of property contained in their cells because `the Fourth Amendment does not establish a right to privacy in prisoners' cells.'" Rodriguez-Rodriguez v. United States, 4 F. App'x 637, 639 (10th Cir. 2001) (quoting Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995)). Because the searches did not violate the constitution, defendants are entitled to qualified immunity on this claim.
Next, plaintiff claims that defendants Maye, Hartley, Baker, Herbig, and others violated the Fifth Amendment by confiscating his personal property, including legal materials, business plans, patent applications, a manuscript, and more. But if a meaningful post-deprivation procedure is available, negligent and intentional deprivations of property do not violate the Fifth Amendment. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Jackson v. Wilkinson, 671 F. App'x 717, 718 (10th Cir. 2016). Defendants have identified a number of post-deprivation remedies available to plaintiff, including the FTCA and Small Claims Act process, as well as prison policies for handling property confiscation. See Muhammad v. Finley, 74 F. App'x 847, 848 (10th Cir. 2003); Akervik v. Ray, 24 F. App'x 865, 869 (10th Cir. 2001). Plaintiff has not adequately shown a constitutional violation, and defendants are entitled to qualified immunity on this claim.
Plaintiff's third claim is against defendants Maye, Hartley, Baker, Howard, and Herbig, for violating plaintiff's First Amendment right of access to the courts. Plaintiff claims that these defendants deprived him of his legal materials for two weeks and/or destroyed them. According to plaintiff, he was unable to pursue a civil rights case or argue against a sentencing enhancement in a collateral attack on his federal criminal conviction.
Violations of the constitutional right of access to the courts require a showing of injury due to the deprivation. See Lewis v. Casey, 518 U.S. 343, 349 (1996). There must be prejudice. Sterling v. Edwards, 881 F.Supp. 488, 490 (D. Kan. 1995). Plaintiff has not made this showing. In his criminal case, plaintiff received the relief that he sought. Plaintiff also has not adequately shown injury in his civil case. He voluntarily withdrew his complaint after being warned as early as October 2013 that many—if not all—of his claims may be barred by res judicata or dismissed on other grounds. Plaintiff's access to his legal materials was only for a temporary time of eleven days. And defendants indicate that if plaintiff had advised of an immediate need for access to legal documents, they would have allowed him to access the materials. Again, plaintiff failed to show a constitutional violation.
Plaintiff also argues that defendants retaliated against him for exercising his right to file administrative grievances. Retaliation for using the prison grievance process is impermissible. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citing Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)). But to avoid the bar of qualified immunity, plaintiff must show that defendants' actions were substantially motivated by his exercise of constitutionally-protected activity. Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007).
Plaintiff claims that the following acts were taken in retaliation for his grievance activities: cell searches, cell moves, interviews by investigative staff, job loss, discipline, and administrative remedy rejections. These allegedly-retaliatory actions occurred in relatively close proximity to plaintiff's protected activities. Temporal proximity alone, however, is insufficient to demonstrate causation for a retaliation claim. Strope v. Cummings, 381 F. App'x 878, 883 (10th Cir. 2010).
There is no evidence that the cell searches resulted from retaliatory motives. To the contrary, the evidence shows that the cell searches were conducted pursuant to policy and procedure intended to maintain security and sanitation.
Plaintiff's January 3, 2014 cell move was prior to any administrative remedy filings related to his January 2 cell search. The uncontroverted evidence shows that defendants moved plaintiff because of his excessive property and the markings on the wall tiles.
The uncontroverted evidence indicates that defendant Herbig was assigned to investigate some of plaintiff's administrative remedies. He interviewed plaintiff less than five times, usually at the beginning of the work day to avoid disruption. There is no evidence to suggest that defendant Herbig scheduled these interviews with retaliatory motive.
There is no constitutional property or liberty interest in prison employment. Ingram v. Papalia, 804 F.2d 595, 596-97 (10th Cir. 1986) (citations omitted). Plaintiff's claim about his job termination is foreclosed. In any event, the uncontroverted evidence shows that defendant Wagner terminated plaintiff for inappropriate behavior and for storing numerous books (for personal use) at the work site. Defendant Wagner also stated by affidavit that she was not aware that plaintiff had filed a number of grievances.
Plaintiff may not challenge the content of defendant Logan's incident report because it is a matter of prison discipline. The disciplinary conviction has not been invalidated, and plaintiff may not seek to overturn it through this court. Heck v. Humphrey, 512 U.S. 477, 487 (1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997). In any event, the uncontroverted evidence shows that defendant Logan did not falsify the incident report about plaintiff arriving late for work. Defendants Mitts' and Arellano's review of the surveillance video and disciplinary findings are likewise not subject to challenge.
Finally, defendants' uncontroverted evidence shows that any administrative remedies that were rejected were done so in accordance with policy. The Administrative Remedy Coordinator stated that the majority of plaintiff's administrative remedies were, in fact, not rejected. And plaintiff was generally allowed to correct and refile submissions if possible. There is no evidence to suggest that any grievances were denied for retaliatory reasons.
Because plaintiff has not presented any admissible evidence of retaliation, he is unable to show a constitutional violation. Plaintiff has not shown that defendants' actions were substantially motivated by his exercise of constitutionally-protected activity. The court therefore grants qualified immunity on these claims.
Finally, plaintiff generally claims that defendants' treatment of him constituted cruel and unusual punishment. He also alleges that he had to go one night without bedding, which was a violation of the Eighth Amendment, as well.
The "Eighth Amendment requires that prison officials `provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable steps to guarantee the inmates' safety.'" Brewer v. Gilroy, 625 F. App'x 827, 833 (10th Cir. 2015) (quoting DeSpain v. Uphoff, 264 F.3d 965, 874 (10th Cir. 2001)). There are objective and subjective components to establishing deliberate indifference based on inhumane conditions of confinement.
Objectively, the deprivation alleged must be sufficiently serious—i.e., the challenged action must deny plaintiff the minimal civilized measure of life's necessities. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Comfortable prisons are not required by the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 349 (1981); Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998). Any deprivation must be extreme. Hudson v. McMillian, 503 U.S. 1, 9 (1992).
Subjectively, the prison official must have acted with "`deliberate indifference' to inmate health or safety." Id. at 834. "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Id. at 837.
Plaintiff's claims that harassment and retaliation constituted cruel and unusual punishment lack merit. First, they are unsupported. Second, the general claims of harassment and retaliation do not involve cruel or inhumane prison conditions. And third, even if they were supported by evidence, they do not rise to the objective level of an extreme deprivation. Likewise, plaintiff's more specific complaint that he slept one night without bedding is insufficient to show an Eighth Amendment violation—even if it were supported by evidence. Defendants are also entitled to qualified immunity for this claim because plaintiff does not show a constitutional violation.
The case is closed.
