45 F.Supp.2d 709 (W.D.Mo. 1999), 97-4305-CV-C-5, Mason v. Schriro

Docket Nº:97-4305-CV-C-5.
Citation:45 F.Supp.2d 709
Party Name:Avery MASON, # 38139, Plaintiff, v. Dora B. SCHRIRO, et al., Defendants.
Case Date:February 02, 1999
Court:United States District Courts, 8th Circuit, Western District of Missouri

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45 F.Supp.2d 709 (W.D.Mo. 1999)

Avery MASON, # 38139, Plaintiff,


Dora B. SCHRIRO, et al., Defendants.

No. 97-4305-CV-C-5.

United States District Court, W.D. Missouri, Central Division.

Feb. 2, 1999

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[Copyrighted Material Omitted]

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Avery Mason, Fulton Reception & Diagnostic Center, Fulton, MO, pro se.

Anthony Gerald Fussner, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, MO, for plaintiff.

Virginia Murray, Missouri Attorney General's Office, Jefferson City, MO, for defendants.


LAUGHREY, District Judge.

On November 3, 1998, the United States Magistrate Judge recommended that defendants' motion for summary judgment be granted, in part, and denied, in part. The parties were advised they could file written exceptions to the recommendation, pursuant to 28 U.S.C. § 636(b)(1)(C). On November 18, 1998, defendants filed their exceptions. On November 30, 1998, plaintiff filed his response to defendants' exceptions.

In their exceptions, defendants state that the Magistrate Judge erred in his Report because: (i) plaintiff's temporary housing assignment at Fulton Reception and Diagnostic Center is not an issue in this lawsuit; (ii) plaintiff has failed to show that defendants Schriro, Lombardi, Long and Riley are involved in his claims involving the alleged discriminatory housing policy; (iii) the challenged housing policy was justified because of jail security concerns and the safety and welfare of inmates; (iv) plaintiff could have requested different cell assignments with inmates of other races; (v) plaintiff has presented no evidence that the challenged policy was a pretext for invidious discrimination and therefore fails to state a valid equal protection or conspiracy claim; and (vi) 42 U.S.C. § 1997e(e) precludes plaintiff from recovering damages for mental and emotional injuries.

In his response to exceptions, plaintiff requests that the district court "affirm the report and recommendation of November 3, 1998," and does not object to any of the recommendations in the Magistrate Judge's Report. Plaintiff, instead, responds to specific exceptions by the defendants.

Statement of Claims

In support of his claims for damages, plaintiff asserts that defendants violated his equal protection rights while he was temporarily assigned to Fulton Reception and Diagnostic Center (FRDC) between May 3 and August 26, 1996. Plaintiff states that defendants used race-based considerations to make housing assignments at FRDC. 1 Plaintiff also alleges that defendants conspired to deprive him of his constitutional rights in violation of 42 U.S.C. § 1985(3).

In his amended complaint, plaintiff alleges additional violations of his equal protection rights. Specifically, he alleges that defendants discriminated against him on the basis of race because other inmates were assigned to either housing in tents or to permanent population, or were given job assignments, whereas plaintiff was denied these assignments solely because of his race.

The Magistrate Judge recommended dismissing the additional claims in the amended complaint. Plaintiff does not oppose the dismissal of these claims. A de novo review of the record convinces the court that the recommendation to dismiss the additional claims in the amended complaint, i.e., the claims that were not asserted in the original complaint, is correct and should be adopted.

Defendants' Exceptions

(i) Claims relating to Temporary Housing Assignment

Initially, defendants argue that plaintiff's temporary housing assignment at

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Fulton Reception and Diagnostic Center is not an issue in this lawsuit. A review of the record indicates that in his first amended complaint, plaintiff incorporates by reference the allegations in his original complaint. (See Doc. 4, ¶ 3, 4). Accordingly, plaintiff's temporary housing assignment is an issue in this lawsuit.

(ii) Failure to Allege Personal Involvement

Second, defendants argue that plaintiff has failed to show how defendants Schriro, Lombardi, and Riley were personally involved in his claims challenging the discriminatory housing policy. Defendants did not raise this argument in the motion for summary judgment. After considering this argument, however, the court agrees that plaintiff has failed to show how defendant Riley, who is the Director of Offender Rehabilitative Services, is involved with the housing assignment policy. The court concludes, however, that plaintiff has sufficiently shown how defendants Schriro and Lombardi are involved in the claims. Defendant Schriro is the Director of the Missouri Department of Corrections and defendant George Lombardi is the Director of the Division of Adult Institutions. Although defendants Schriro and Lombardi state in their affidavits that they are not responsible for making housing assignments at institutions within the Missouri Department of Corrections, plaintiff could reasonably be inferred to state in the complaint that defendants, as high-level administrators within the Missouri Department of Corrections, failed to properly exercise their administrative and oversight responsibilities by tolerating a housing assignment policy at FRDC that permits prison officials to take race into account when making temporary housing assignments. The court notes that at a recorded conference on November 30, 1998, plaintiff stated, and defendants did not dispute, that the alleged discriminatory housing policy is embodied in Standard Operating Procedure IS5-3.1. (See, e.g., Doc. 81 relating to the discussion at conference.) A response to plaintiff's grievance also provides that the expeditious assignment of inmates based on race, age, and length of sentence is outlined in policy and procedure IS5-3.1. (See exhibits attached to Document 1, Grievance Response by Defendant Goeke.) Accordingly, plaintiff indicates that the challenged policy was embodied in a written Department of Corrections policy and it can reasonably be inferred that defendants Schriro and Lombardi, as high-level administrative officials within the Missouri Department of Corrections, would know of a written policy in the Standard Operating Procedures.

Defendants also state that defendant Long is not responsible for making housing assignments at the Missouri Department of Corrections. However, defendant Long responded to plaintiff's grievance appeal and stated that he thought the challenged housing policy was justified because large numbers of inmates needed to be processed daily and because plaintiff was in temporary housing assignment. Defendant Long defended the challenged housing policy and did not authorize any change in housing assignments when plaintiff filed a grievance appeal. Defendant Long is also a high-ranking official with responsibility similar to those of defendant Lombardi and should remain in the lawsuit for the same reasons set forth regarding Mr. Lombardi. Accordingly, plaintiff has sufficiently shown how defendant Long was personally involved in the alleged constitutional violations.

(iii) Argument that Plaintiff Failed to Request A Cell Change

Defendants argue that plaintiff could have requested a cell change and has not shown that he did. However, the record indicates that plaintiff filed an informal resolution request (IRR), a grievance and a grievance appeal complaining about the housing assignment. In the grievance response and response to grievance appeal, plaintiff was notified that other kinds of

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considerations besides race, age, and length of sentence would be made when plaintiff was transferred to a permanent accommodation. The IRR response is also consistent with this response. Accordingly, the court determines that plaintiff complained about his housing assignment on the basis that it took race into account, and in the grievance responses, plaintiff was not offered an alternative assignment but notified that he should wait until he was permanently transferred so that he could get a housing assignment that was based on other considerations. (See Grievances attached to Document 1.)

(iv) Whether Plaintiff has alleged Discriminatory Intent

Defendants also argue that plaintiff has not alleged any facts to show that the race-based housing assignment policy was a pretext for intentional discrimination. The court finds that where a particular governmental policy is race-based, plaintiff has made a prima facie showing of a discriminatory intent. The court here is not faced with a situation where there is a neutral governmental policy, fair on its face, resulting in unequal application to those who are entitled to be treated alike. See, e.g., Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944) (the unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not the denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination). Here, plaintiff alleges a suspect classification, race, was used as a criterion in the housing assignment policy and, by implication, argues that a policy using a suspect classification is not fair on its face. Defendants do not deny that the policy authorized race to be taken into account as one factor for making housing assignments. Plaintiff satisfies his burden of showing discriminatory intent when he alleges that the policy takes race into account.

The Equal Protection Clause provides that "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amendment 14, § 1. Its central purpose is to prevent the states from purposefully discriminating between individuals on the basis of race...

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