Orebaugh v. Caspari

• Decision Date: 07 August 1990
• Docket Number: No. 89-2578EM,89-2578EM
• Parties: James OREBAUGH, Appellant, v. Paul CASPARI; Walter Dickerman; Donna Kay Brown; Janet Schneider; Mary Francis; Mary Brundage; Ralph Caprano; Barry Dolan; Dick Moore, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 526

910 F.2d 526

James OREBAUGH, Appellant, v. Paul CASPARI; Walter Dickerman; Donna Kay Brown; Janet

Schneider; Mary Francis; Mary Brundage; Ralph

Caprano; Barry Dolan; Dick Moore, Appellees.

No. 89-2578EM.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 9, 1990.

Decided Aug. 7, 1990.

James Orebaugh, pro se.

No counsel filed for appellees.

Before MAGILL and BEAM, Circuit Judges, and HEANEY, Senior Circuit Judge.

PER CURIAM.

James Orebaugh, a Missouri prisoner, appeals the district court's ¹ order dismissing as frivolous his pro se 42 U.S.C. Sec. 1983 complaint against various prison officials. We affirm.

Orebaugh's complaint alleged the following. A correctional officer conducting a routine room search of Orebaugh's cell confiscated and destroyed various items Orebaugh had purchased from the prison canteen because they exceeded the number of items allowed in an inmate's cell by prison regulations. Orebaugh filed a grievance requesting that the prison credit his account with the money value of the confiscated items. The grievance was denied. On appeal, it was found that the confiscation was proper, but destruction of the items without first giving Orebaugh the opportunity to send them home was not. Orebaugh was given the opportunity to send home replacements for the destroyed items. ² However, he continued to request money credit for the items, and on April 14, 1989, the matter was referred to the next tier of the grievance procedure.

On May 5, 1989, while he was on light duty because of an injury to his arm, Orebaugh was placed on three days room restriction for playing softball. This conduct violation was reported by the same officer who had confiscated Orebaugh's canteen items. According to the officer's violation report, "The nursing staff stated to this reporting officer that resident Orebaugh was disobeying a direct order given to him by the hospital." The hearing report indicates Orebaugh maintained that all he received was a light-duty order, which directed that he perform only light duty for three weeks and not "attend various activities and recreation." The disciplinary committee found Orebaugh guilty on the basis of the nursing staff member's statement and restricted him to his room. While so restricted, Orebaugh was disciplined for visiting another inmate and scuffling with him. For his actions, he received an additional five days room restriction.

Orebaugh's complaint claimed that: (1) his due process rights were violated by the destruction of his property, and by the guilty finding based only upon the testimony of the charging officer in the scuffling infraction; (2) the disciplinary action resulting from his playing softball violated due process because his light-duty hospital order did not specify he was restricted from playing sports; and (3) the disciplinary actions were instituted against him in retaliation for pursuing the prison grievance procedures regarding his confiscated property. He requested both that his disciplinary record be cleared, and that he be awarded money damages for the value of the confiscated items ($47.60) and his emotional suffering.

The district court, adopting the magistrate's ³ recommendation over Orebaugh's objections, found the complaint frivolous and dismissed the entire complaint pursuant to 28 U.S.C. Sec. 1915(d) as legally frivolous. We find no error.

First, to the extent Orebaugh bases his claim on the unauthorized destruction of his property, we hold that there is no violation of due process because Missouri provides an adequate postdeprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984); Maples v. United Savings & Loan Assoc., 686 S.W.2d 525, 527 (Mo.App.1985).

Second, to the extent Orebaugh challenges the prison's policy of not crediting him with the value of the destroyed items, but only allowing him to send them (i.e., their replacements) home, it is his burden to demonstrate that the policy is not reasonably related to a legitimate penological interest. See Washington v. Harper, --- U.S. ----, 110 S.Ct. 1028, 1037, 108 L.Ed.2d 178 (1990) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987)). He has not made such a showing. Therefore, we hold that the district court properly dismissed this claim as frivolous.

Third, we also agree with the district court that Orebaugh's challenge to the disciplinary action for scuffling was frivolous. One officer's testimony was sufficient to constitute some evidence. See Brown v. Frey, 807 F.2d 1407, 1414 (8th Cir.1986).

Fourth, there is also some evidence in the record to support the softball infraction. See id. Although the disciplinary committee stated that its finding was based on the statement of the unidentified nursing staff member, Orebaugh himself acknowledged that the lay-in order stated he could not attend recreational activities. Playing softball violated that order. While it is doubtful that the nurse's statement can, standing alone, constitute some evidence of Orebaugh's guilt, see Freitas v. Auger, 837 F.2d 806, 810 & n. 8 (8th Cir.1988), his own admissions clearly constitute some evidence.

Finally, Orebaugh argues that both the softball and scuffling disciplinary actions were taken in retaliation for his filing and pursuing the grievance action. Although the district court did not directly consider his retaliation claim, the court's other conclusions enable us to dispose of this argument without remanding. We held in Sprouse v. Babcock, 870 F.2d 450 (8th Cir.1989), that otherwise proper acts are actionable under Sec. 1983 if done in retaliation for filing a grievance pursuant to established prison procedures. Id. at 452. However, crucial to our holding in Sprouse was that the prisoner alleged that false disciplinary reports were filed against him in retaliation for his filing a grievance. Id. ("Sprouse's claims based on the falsity of the charges and the impropriety of [his counselor's] involvement in the grievance procedure, standing alone, do not state constitutional claims. Here, however, these claims were linked to a retaliation claim.") (emphasis added) (citations omitted); see also Franco v. Kelly, 854 F.2d 584, 585, 589 (2d Cir.1988) (holding of retaliation based in part upon falsity of charges).

In this case, the disciplinary reports were true as found by the prison administration. Orebaugh admitted that he did play softball. Playing softball did constitute a violation of his light-duty orders. He did have canteen items in excess of regulations, and he did scuffle with another inmate. While a prisoner can state a claim of retaliation by alleging that disciplinary actions were based upon false allegations, no claim can be stated when the alleged retaliation arose from discipline imparted for acts that a prisoner was not entitled to perform. Any other rule would allow a prisoner to openly flout prison rules after filing a grievance and then bring a claim under section 1983 arguing that prison officials disciplined him in retaliation for his filing a grievance.

Accordingly, we affirm.

HEANEY, Senior Circuit Judge, concurring in part and dissenting in part.

Although I agree that the destruction of Orebaugh's property and the disciplinary charges brought against him did not deprive Orebaugh of due process, I dissent from the dismissal of Orebaugh's retaliation claim. The majority's holding on this claim establishes a rule that will immunize prison officials from retaliation suits whenever some evidence in the record supports the imposition of a disciplinary charge, no matter how retaliatory the motive behind the charge may be. Neither our prior cases nor the meager record before us supports the establishment of such a rule.

In Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989), we held that the filing of a disciplinary charge against an inmate, although otherwise not actionable under section 1983, is actionable if made in retaliation for filing a prison grievance. The majority asserts that the alleged falsity of the challenged disciplinary charges was "crucial" to our holding in Sprouse. Neither the language of the holding nor the procedural posture of Sprouse, however, supports this assertion. Sprouse appealed a summary judgment against him on his retaliation claim, and the truth or falsity of the disciplinary charges against him had not yet been determined. The fact crucial to our reversal and remand was that Sprouse...