Anderson v. Sundquist, 98-2222-D/V.

• Decision Date: 13 April 1998
• Docket Number: No. 98-2222-D/V.,98-2222-D/V.
• Citation: 1 F.Supp.2d 828
• Parties: Dwayne E. ANDERSON, Plaintiff, v. Don SUNDQUIST, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

Page 828

1 F.Supp.2d 828

Dwayne E. ANDERSON, Plaintiff, v. Don SUNDQUIST, et al., Defendants.

No. 98-2222-D/V.

United States District Court, W.D. Tennessee, Western Division.

April 13, 1998.

Dwayne E. Anderson, Henning, TN, pro se.

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ORDER ASSESSING FILING FEE ORDER OF DISMISSAL AND ORDER IMPOSING SANCTIONS UNDER 28 U.S.C. § 1915(g)

DONALD, District Judge.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff, Dwayne E. Anderson, an inmate at the West Tennessee High Security Facility (WTHSF),¹ has filed a fourth complaint² under 42 U.S.C. § 1983, with an application to proceed in forma pauperis. For the reasons set forth below, plaintiff is ordered to submit the $150.00 filing fee within thirty (30) days of the entry of this order. This obligation will continue despite the immediate dismissal of this action under 28 U.S.C. § 1915(g). The Clerk of Court shall file the case and record the Defendants as Bernard Bennett, Donal Campbell, James Clark, Robert Conley, Billy Dowell, Jimmy Grennard, Hines, John Kelly, Maulin, Montgomery, Robert Mumford, Ottinger, Don Sundquist, and Steve Vaughn.

The Prison Litigation Reform Act of 1995 ("PLRA"), Title VIII of Pub.L. 104-134, 110 Stat. 1321 (1996), enacted 28 U.S.C § 1915(g),³ which severely restricts plaintiff's filing privileges. Section 1915(g) operates to bar prisoners from filing further in forma pauperis actions after three dismissals. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir.1996). The cases dismissed by this Court count as "strikes" under § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). The appellate dismissals for lack of jurisdiction also count, as a case or appeal that is devoid of jurisdiction is plainly frivolous. Moreover, in counting frivolous dismissals for purposes of § 1915(g), qualifying appellate dismissals also count as strikes. Id. at 388. See also Newlin v. Helman, 123 F.3d 429, 433 (7th Cir. July 23, 1997) (a dismissal in the district court followed by a dismissal of an appeal counts as two strikes); Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir.1997) (dismissal of an appeal counts as a strike).

The federal courts in general, and this Court in particular, can take judicial notice of those dismissals. Green, 90 F.3d at 418. Plaintiff does not allege that he is now under imminent danger of serious physical injury. He is clearly a prisoner within the meaning of revised § 1915(h).⁴ Accordingly, Dwayne Anderson may no longer file any action in this district in which he proceeds in forma pauperis unless he demonstrates that he "is under imminent danger of serious physical injury." The motion to proceed in forma pauperis is DENIED and the complaint is DISMISSED under 28 U.S.C. § 1915(g) and 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff is, however, liable to the Court for the full $150.00 filing fee.⁵

Furthermore, this dismissal will be with prejudice because plaintiff's claims are legally frivolous and would be dismissed even if plaintiff prepaid the full filing fee. See 28 U.S.C. § 1915(e)(2): "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action ... is frivolous."

II. PLAINTIFF'S CLAIMS

In this case, plaintiff sues Tennessee Governor Don Sundquist, Tennessee Department of Corrections (TDOC) Commissioner Donal Campbell, WTHSF Warden Robert Conley, Unit Manager James Clark, Disciplinary Board Chairman Billy Dowell, Inmate Relations Coordinator John Kelly, Disciplinary Board Members Bernard Bennett, Ottinger, and Steve Vaughn, Corporal Jimmy Grennard, and Officers Hines, Maulin, Montgomery, and Robert Mumford. His claims all arise out of plaintiff's transfer from unit 6 to unit 5 at WTHSF. Plaintiff's linens and clothes were lost during the transfer, and he protested to Kelly and Conley about the loss. Subsequent communications turned mildly acrimonious. Plaintiff attempted to intimidate Kelly into obtaining various items of clothing and property by threatening to report him to the warden, and Kelly charged him with the disciplinary infraction of threatening an employee. The WTHSF disciplinary board convicted Anderson of two violations and imposed various penalties, including a written warning, package receipt restrictions, four dollar fines, and television restrictions. Plaintiff also sues Officers Hines, Maulin, Montgomery and Mumford for searching his cell and allegedly confiscating or destroying legal papers. Plaintiff, of course, views all of the defendants' conduct as retaliatory for his filing lawsuits and for complaining about Kelly's treatment of him.

An inmate does not have a liberty interest in a particular security classification or assignment to a particular institution. Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547-48, 49 L.Ed.2d 466 (1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976); Newell v. Brown, 981 F.2d 880, 883 (6th Cir.1992); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir.1986). Prison classification and disciplinary cases were previously analyzed by considering whether "the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State [or federal government] has created a protected liberty interest." Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983). In Sandin v. Conner, 515 U.S. 472, 484-87, 115 S.Ct. 2293, 2300-02, 132 L.Ed.2d 418 (1995), however, the Supreme Court, without explicitly overruling Hewitt itself, returned to the question left open in Wolff v. McDonnell, 418 U.S. 539, 564-71, 94 S.Ct. 2963, 2978-82, 41 L.Ed.2d 935 (1974): whether inmates even have a liberty interest in freedom from segregation, punitive or administrative. The Court rejected Hewitt's methodology and concluded that they do not.

The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. See also Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek[ v. Jones, 445 U.S. 480,] 493, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 [ (1980) ] (transfer to mental hospital), and Washington[ v. Harper, 494 U.S. 210,] 221-222, 110 S.Ct. 1028, 1036-37, 108 L.Ed.2d 178 [ (1990) ] (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation. Neither Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), nor Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), requires such a rule.... We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.... We hold, therefore, that neither the Hawaii prison regulation in question, nor the Due Process Clause itself, afforded Conner a protected liberty interest that would entitle him to the procedural protections set forth in Wolff. The regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.

Sandin, 515 U.S. at 483-84, 486, 487 (footnotes and some citations omitted).

Sandin thus focuses not on the content of regulations, but on the "nature of the deprivation" visited upon the inmate. Id. at 481. Absent "atypical and significant hardship," a change in the conditions of confinement simply does not inflict a cognizable injury that merits constitutional protection, regardless of the motivation of the official when making the change. Id. at 484-86. Thus language in state laws or prison regulations no longer creates a liberty interest protected by the Due Process Clause. Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.1995). Rather, from now on, when analyzing due process claims federal courts look neither to state laws or regulations to ascertain whether they create a liberty interest in connection with reclassification or a prison transfer, nor to the subjective motives of prison officials for effecting such a change. Instead, the Court focuses on the nature of the deprivation itself.

After [Sandin], prisoners may no longer peruse state statutes and prison regulations searching for the grail of limited discretion. Instead, a prisoner has a liberty interest only in "freedom[s] from restraint ... impos[ing] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 474, 115 S.Ct. at 2295 (emphasis added).

Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 516 U.S. 1059, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996). According to Orellana, only deprivations that clearly impinge on the duration of confinement, will henceforth even possibly qualify for constitutional "liberty" status. Id. at 31-32.

The allegation that plaintiff was confined to segregation or deprived of minor privileges such as packages or television viewing does not amount to an allegation of "atypical and significant hardships" "in relation to...