Arney v. Simmons

• Decision Date: 08 April 1996
• Docket Number: No. 95-3036-DES.,95-3036-DES.
• Citation: Arney v. Simmons, 923 F. Supp. 173 (D. Kan. 1996)
• Parties: Jouett Edgar ARNEY, Fred E. Baker, Robert Bookless, and Gary Lee McColpin, Plaintiffs, v. Charles E. SIMMONS, Defendant.
• Court: U.S. District Court — District of Kansas

923 F. Supp. 173

Jouett Edgar ARNEY, Fred E. Baker, Robert Bookless, and Gary Lee McColpin, Plaintiffs, v. Charles E. SIMMONS, Defendant.

No. 95-3036-DES.

United States District Court, D. Kansas.

April 8, 1996.

COPYRIGHT MATERIAL OMITTED

Kirk W. Lowry, Palmer & Lowry, Topeka, KS, Lynette F. Petty, John F. Carpinelli, Todd R. Stramel, Jeffrey D. Wicks, Washburn University School of Law, Topeka, KS, Stephen M. Kirschbaum, Wyandotte-Leavenworth Legal Services, Kansas City, KS, for Jouett Edgar Arney.

Kirk W. Lowry, Palmer & Lowry, Topeka, KS, Lynette F. Petty, John F. Carpinelli, Todd R. Stramel, Jeffrey D. Wicks, Washburn University School of Law, Topeka, KS, for Fred E. Baker, Robert A. Bookless, Gary A. McColpin.

Janie M. Hulser, Topeka Correctional Facility, Topeka, KS, Pro Se.

Tonnette Lawhorn, Dallas, TX, Pro Se.

Dawn Dale, Topeka Correctional Facility, Topeka, KS, Pro Se.

Stephanie Stewart, Topeka Correctional Facility, Topeka, KS, Pro Se.

Mary Middleton, Topeka Correctional Facility, Topeka, KS, Pro Se.

Mary Skinner, Topeka Correctional Facility, Topeka, KS, Pro Se.

Jody Craddock, Topeka Correctional Facility, Topeka, KS, Pro Se.

Donna Tanksley, Topeka Correctional Facility, Topeka, KS, Pro Se.

Lowell H. Listrom, Kansas City, MO, Pro Se.

Karmaletha R. Brown, Topeka Correctional Facility, Topeka, KS, Pro Se.

April M. Clay, Topeka Correctional Facility, Topeka, KS, Pro Se.

Lesa Morton, Topeka Correctional Facility, Topeka, KS, Pro Se.

Andrea Jennings, Topeka Correctional Facility, Topeka, KS, Pro Se.

Willie Nero, Lansing, KS, Pro Se.

Dennis Lee Soper, Lansing, KS, Pro Se.

Willie Robinson, Lansing, KS, Pro Se.

Derick Chappell, Lansing, KS, Pro Se.

David L. Fletcher, Lansing, KS, Pro Se.

Roy E. Humphry, Lansing, KS, Pro Se.

Wayne L. Morris, Lansing, KS, Pro Se.

Dennis (nmi) House, Lansing, KS, Pro Se.

Elton D. Garrett, Lansing, KS, Pro Se.

Rose M. Arney, Jersey City, NJ, Pro Se.

Carl Kemp, Kansas State Penitentiary, Lansing, KS, Pro Se.

John Waldo Jones, Hutchinson Correctional Facility, Hutchinson, KS, Pro Se.

Rose Mary Maberry, Pro Se.

Brian L. Brown, Hutchinson, KS, Pro Se.

Richard Arlen Miller, Hutchinson Correctional Facility, Hutchinson, KS, Pro Se.

Ervin Triplett, New Hampshire State Prison, Concord, NH, Pro Se.

Artis T. Kato, Rahway, NJ, Pro Se.

Lee Coleman, Delta Regional Unit, Dermott, AR, Pro Se.

George Arce, Fallsburg, NY, Pro Se.

Mark Miller, Lansing, KS, Pro Se.

Melvin Romero, Pro Se.

Kirk W. Lowry, Palmer & Lowry, Topeka, KS, Lynette F. Petty, Washburn University School of Law, Topeka, KS, for Fred E. Baker, Robert A. Bookless, Gary A. McColpin.

Michael C. Cavell, Michael D. Moeller, William R. Drexel, Southwestern Bell Telephone Co., Topeka, KS, Michael G. Smith, Southwestern Bell Telephone Co., St. Louis, MO, for Southwestern Bell Telephone Company.

Stewart L. Entz, Entz & Chanay, Topeka, KS, William K. Waugh, III, John L. Vratil, William G. Howard, Lathrop & Gage L.C., Overland Park, KS, for American Telephone & Telegraph Co.

Lisa J. Henoch, Bryan Cave L.L.P., Kansas City, MO, Donna M. Roberts, MCI Telecommunications, Washington, DC, Loren W. Moll, Bryan Cave L.L.P., Overland Park, KS, for MCI Telecommunications Corporation.

Linden G. Appel, Kansas Department of Corrections, Topeka, KS, for Kansas Secretary of Corrections, Charles E. Simmons.

ORDER

SAFFELS, Senior District Judge.

Four plaintiffs confined in Lansing Correctional Facility in Lansing, Kansas, proceed with appointed counsel on a civil rights complaint filed pursuant to 42 U.S.C. § 1983, in which they allege constitutional error in a proposed method for providing telephone access to inmates at the facility. The Secretary of Corrections for the State of Kansas is the sole defendant.

Before the court is plaintiffs' motion for preliminary and permanent injunctive relief (Doc. 127) regarding defendant's management of funds from an inmate benefit account that is funded with moneys generated by inmate telephone calls. Plaintiffs seek to enjoin defendant from authorizing allegedly improper expenditures from this fund, and to enjoin defendant from diverting future funding from this inmate benefit account. Having reviewed the briefs and the arguments presented at the hearing on plaintiffs' motion, the court enters the following findings and order.

The fund at issue is a Department of Corrections Inmate Benefit Fund ("DOC-IBF"), established in 1990, that is primarily funded with commissions paid by the long distance telephone company providing service on inmate calls to numbers outside the area code of the inmate's confinement.¹ The DOC-IBF is authorized by state statute, K.S.A. 75-3728e, and over $1 million currently flows into this fund each year. The statute, as amended in 1993, defines the fund as monies or assets that are available

"(1) To provide property, services or entertainment for persons ... in the legal custody of the secretary of corrections;

(2) to provide incentives for program and work participation and performance and other activities related to offender management for persons in the legal custody of the secretary of corrections; or

(3) for other purposes that benefit persons in ... the legal custody of the secretary of corrections."

K.S.A.1995 Supp. 75-3728e(c). Another state statute also dictates that "No ... benefit fund shall be operated contrary to the provisions of this act ..." K.S.A.1995 Supp. 75-3728i.

Plaintiffs claim this state law and related state regulations require that moneys in the DOC-IBF be used only to benefit inmates. They point to the use of the fund to pay for the Victim Notification Program ("VNP")² and Capture Stations³ as instances in which the fund is being spent for unauthorized purposes. Plaintiffs also claim defendant is improperly threatening to divert future telephone commissions from the DOC-IBF if expenditures of this fund are to be restricted as plaintiffs maintain.

Standards

To obtain injunctive relief, the moving party must establish: (1) the movant will suffer irreparable injury unless the injunction issues; (2) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) substantial likelihood that the movant will succeed on the merits. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980); see also SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991). If the first three standards are met or assumed for the purpose of deciding a motion for injunctive relief, the likelihood of success requirement is satisfied if the moving party shows there are serious, substantial, and difficult questions regarding the merits of the moving party's claim that make the issue ripe for litigation and deserving of more deliberate investigation. City of Chanute v. Kansas Gas and Elec. Co., 754 F.2d 310, 314 (10th Cir.1985).

Also, "when due process contentions are raised relative to the operation, maintenance and administration of the penal system, the courts should be acutely aware that caution must be exercised in achieving a careful balance of the interest of that system as against the interests of the prisoners." Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir.) (citations omitted), cert. denied, 429 U.S. 846, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976).

Discussion

To allege a valid § 1983 claim, a plaintiff must assert the denial of a right, privilege or immunity that is secured by federal law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Hill v. Ibarra, 954 F.2d 1516, 1520 (10th Cir.1992). Thus for plaintiffs to proceed under § 1983 on their allegation of error in defendant's management of the DOC-IBF, the error must be of constitutional dimension. Plaintiffs essentially claim defendant's expenditures for VNP and Capture Station programs constitute an unauthorized taking of plaintiffs' property which denies plaintiffs due process as guaranteed under the Fourteenth Amendment.

Under the Fourteenth Amendment, individuals are entitled to due process if the state deprives them of a liberty or property interest that is protected by the Constitution. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). Thus the first step in analyzing a procedural due process claim is identifying whether the alleged deprivation impacts such a protected interest. Plaintiffs, therefore, must demonstrate they have a protected interest in the challenged fund.

The United States Constitution does not create a protected interest in property. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Protected property interests "stem from an independent source, such as state law — rules or understanding that secure certain benefits and that support claims of entitlement to those benefits." Id. In the present case, plaintiffs claim state law establishes a legitimate expectation that all DOC-IBF expenditures must directly benefit inmates. See e.g., Gillihan v. Shillinger, 872 F.2d 935, 939 (10th Cir.1989) (protected property interest in personal inmate account where statutes created legitimate expectation that money not used for specified reasons would be returned to inmate's account). The court does not agree.

State law creates a protected interest if mandatory language in the law substantively restricts the discretion of state officials. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).⁴ The state statute at issue in the present case, however, does not contain such mandatory directives.

Prior to the 1993 amendment, the statute defined a benefit fund only as moneys available "to provide property, services or entertainment for persons in a state institution." K.S.A. 75-3728e(c). In the 1993 amendment, the Kansas Legislature significantly expanded that...