Twyman v. Crisp

Decision Date06 September 1978
Docket NumberNo. 77-1921,77-1921
PartiesRobert L. TWYMAN, Plaintiff-Appellant, v. Richard A. CRISP, Phillip Kirk, Melvin D. Typer, James E. Sorrells, and Charles E. Stamper et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Robert L. Twyman filed a pro se memorandum opposing summary affirmance.

Larry Derryberry, Atty. Gen., Ross N. Lillard, III, Asst. Atty. Gen., filed a memorandum brief in support of summary affirmance on behalf of appellees.

Before LEWIS, BARRETT and LOGAN, Circuit Judges.

PER CURIAM.

Appellant Robert L. Twyman is an Oklahoma State prisoner presently serving a life sentence in McAlester, Oklahoma. He has instituted the captioned case pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201, and 2202, seeking various forms of declaratory and injunctive relief as well as money damages against prison officials for violations of his civil rights. The district court boiled down the numerous issues in the complaint to five:

1. The upgrading of appellant from minimum to maximum security custody with the subsequent placing of him in the maximum security cellhouse without a prior hearing violated the due process requirements of Wolff v. McDonnell, 418 U.S. 539 (94 S.Ct. 2963, 41 L.Ed.2d 935) (1974).

2. Appellant was denied medical care.

3. The defendants denied appellant access to the courts by restricting appellant's use of the law library and by restricting the number of free letters appellant was permitted to mail.

4. Appellant was subjected to cruel and unusual punishment when defendant Tyler forced him to stand handcuffed in a hallway for five hours.

5. Appellee Crisp has formulated unconstitutional policies and practices which are supported and carried out by the other named defendants.

Two of these issues, the reclassification issue and the unconstitutional policies issue, were decided prior to the trial by way of the partial granting of defendants' motion for summary judgment. Trial was then had on the claimed inadequate medical care, the standing handcuffed for five hours claim, and the adequacy of the law library, coupled with the free stamp question. On consideration of all the evidence, the district court dismissed the action.

In his memorandum brief Twyman claims the following trial court errors were made:

1. The district court erred in denying appellant's motion to file a supplemental complaint and in not sanctioning the defendants for untimely and uncooperative compliance with discovery rulings.

2. The district court erred in granting summary judgment with respect to the claimed denial of due process on the reclassification question.

3. The district court erred in interpreting the facts surrounding the summary removal of appellant from medium security to maximum security without a prior hearing.

4. The district court erred in finding that appellant was not denied adequate access to the law library and that the law library was neither inadequate in size nor incompetently staffed.

5. The district court failed to correctly apply Bounds v. Smith, 430 U.S. 817 (97 S.Ct. 1491, 52 L.Ed.2d 72) (1977) as requiring the state to provide free postage and envelopes for legal mail.

6. The district court erred in failing to find that appellant was denied medical care based on the alleged cancellation of a special bland diet.

7. The district court erred in various rulings on motions and in failing to inform appellant of the scope of the scheduled trial.

On appeal, it appears that Twyman has dropped his challenge to the constitutionality of the warden's policies, as well as the claim regarding having been required to stand handcuffed for five hours as constituting cruel and unusual punishment. We also note that allegations numbered one and seven above are essentially discretionary trial court procedural matters and do not constitute substantive claims.

Thus, it appears that the following claims that have survived for review by this court on appeal:

1. Denial of adequate medical care.

2. Denial of due process in the reclassification from medium to maximum security without compliance with Wolff v. McDonnell, supra.

3. Inadequate access to the law library through time restrictions and denial of access to the courts through enforcement of the stamp policy.

I. Denial of Adequate Medical Care

Twyman contends that because of ulcers he is required to eat small amounts of food five or six times a day and that he needs a bland diet. He further claims that in January of 1976 the diet was cancelled at the direction of appellee Tyler, resulting in appellant's having frequent spells of vomiting. At trial Twyman admitted that despite cancellation of the diet, he succeeded in obtaining the bland food he claims he needed. He was able to do this (because of his connections with personnel in the kitchen) from January of 1976 through March of 1976, when he was placed in the maximum security cellhouse. In January of 1977, Twyman was put on a diet of between-meal sandwiches, and in April of 1977 the bland diet was restored. During the time between March 1976 and January 1977, appellant received vitamin pills.

On cross-examination, Twyman stated that he spent two years on a regular diet before obtaining the bland diet and that all he (Twyman) knew of the alleged cancellation order was what one Dr. Kim had told him. Twyman admitted he had made no attempt to contact appellee Tyler to verify the alleged cancellation, to request an exception, or to seek any other relief.

Appellee Tyler denied having cancelled appellant's diet and stated that appellant had never notified him (Tyler) of any diet cancellation. Dr. Karl Sauer, Chief Medical Officer at the penitentiary, testified that appellant's medical records reflected that the first time a bland diet was ever prescribed for Twyman was in April of 1977, and that he (Sauer) was unaware of any incidents of interference by appellee Tyler with medical diagnoses or inmate treatment.

Warden Crisp testified that the alleged diet cancellation could possibly have stemmed from a misunderstanding by two Philippine doctors that bland diets were only to be prescribed for medical (as opposed to religious) reasons. Crisp also testified that only Dr. Sauer could determine and decide a medically required diet.

Based on the above, appellant has failed to carry the burden of proving that the alleged diet cancellation constituted cruel and unusual punishment in violation of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). It is true that a properly pleaded claim of interference by prison officials with prescribed medical treatment is cognizable under § 1983. See Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970). However, in order to state a claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. West v. Keve, 571 F.2d 158 (3rd Cir. 1978). The facts produced at trial through the testimony of appellant, appellee Tyler, and the prison doctor belie the existence of the requisite Deliberation and Gravity (emphasis added). Dickson v. Colman, 569 F.2d 1310 (5th Cir. 1978). Nor has Twyman established deliberate defiance of a medical order, despite his allegations. See Martinez v. Mancusi, 443 F.2d 921 (2nd Cir. 1970), Cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971). There is adequate evidence of sick calls, examinations, diagnoses, and medication. Smart v. Villar, 547 F.2d 112 (10th Cir. 1976). Finally, Twyman has not established that appellee Tyler directly participated in the alleged contravention of medical orders. Bennett v. Passic, 545 F.2d 1260 (10th Cir. 1976). Thus the alleged denial of medical care claim is without merit.

II. Denial of Procedural Due Process

The facts appear relatively undisputed that in March of 1976 Twyman was summarily reclassified from medium to maximum custody and transferred to the east cellhouse, with considerable restrictions on his movement and other privileges. The reasons given for the reclassification were that appellant was engaging in "disruptive activities." Appellees admit the reclassification procedure is used in lieu of a formal disciplinary proceeding, apparently on the ground that this "administrative" proceeding does not result in the denial or loss of good time. Appellees further state that they proceed in this manner for reasons of institutional security; in Twyman's case he was suspected of being connected with a prison fire. Appellant claims that the reclassification scheme is a subterfuge to avoid the requirements of Wolff v. McDonnell, supra, and that the system violates the requirements enunciated in Battle v. Anderson, 376 F.Supp. 402, 431 (E.D.Okl.1974).

There does not appear to be any loss of statutory good time, principally because Twyman is not entitled to such time since he is serving a life sentence. However, he does contend that he has lost many privileges and that he cannot earn "statutory work good time credits." Twyman further contends that prisoners in maximum custody were only provided two hours per week in the prison law library.

Inasmuch as statutory good time is not involved, the analysis is not so much Twyman's other lost privileges or even the reclassification methods used by prison officials, but whether any right has been created by state law or prison regulation for a prisoner at McAlester to remain in the general population absent specific infractions of the prison rules. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976).

The Supreme Court in Meachum v. Fano, supra, held that the due process clause does not protect a prisoner from being transferred from one institution to another within a state prison system. The Court at pages 226-227 of 427 U.S., at page 2539 of 96 S.Ct. distinguished Wolff v. McDonnell, supra, because the liberty interests in Wolff had its roots in state...

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