Marrie v. Nickels
| Citation | 70 F.Supp.2d 1252 |
| Decision Date | 30 September 1999 |
| Docket Number | No. 97-3280-JTM.,97-3280-JTM. |
| Parties | John D. MARRIE, et al., Plaintiffs, v. Marvin L. NICKELS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
John D. Marrie, Lexington, KY, pro se.
Michael R. Johnson, Lexington, KY, pro se.
John M. Ricks, Sandstone, MN, pro se.
Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for defendants.
John D. Marrie, John M. Ricks, and Michael R. Johnson are three military prisoners who claim the various defendants have violated their First, Fifth and Eighth Amendment rights under the Constitution through a variety of actions. Plaintiffs appear pro se in this action, and they have sued the defendants in their official and individual capacities. Plaintiffs seek three forms of relief: (1) "administrative sentence credit" toward the expiration of their sentences; (2) injunctive and mandamus relief; and (3) monetary relief in the form of compensatory and punitive damages.
Three motions are currently pending before the court: (1) the defendants' Rule 12(b)(6) motion to dismiss; (2) the plaintiffs' motion to serve process on the defendants; and (3) the plaintiffs' motion to impose Rule 11 sanctions. The court has considered the parties' submissions and is prepared to rule. For the reasons stated below, the defendants' motion to dismiss is denied in part and granted in part; the plaintiffs' motion to serve process is denied as moot; and the plaintiffs' motion for sanctions will be ruled upon at a later date consistent with this order.
At the time this lawsuit was filed, the plaintiffs were being held at the United States Disciplinary Barracks ("USDB") in Fort Leavenworth, Kansas. Marrie had been incarcerated at the USDB since 1992 and was serving a sentence of twenty years. Johnson had also been incarcerated at the USDB since 1992, but he was serving a sentence of thirty-five years. Ricks had been confined at the USDB since 1993 and was serving a fifteen-year sentence. While this lawsuit was pending, the three defendants were transferred to the custody of the United States Bureau of Prisons. Thereafter, Marrie was moved to Lexington, Kentucky; Ricks was transferred to Sandstone, Minnesota; and Johnson was relocated to Pekin, Illinois.
The plaintiffs' complaint alleges numerous wrongful acts by the defendants. Their primary complaints concern the conditions at the USDB. Specifically, they claim that (1) ventilation in their individual cells is non-existent and they are prevented from having fans in their cells; (2) they are locked down in their cells for an average of 9½ hours per day, at least 2½ hours of that time being the hottest part of the day during the summer months; (3) many of the cells and common areas are coated with lead-based paint and they are being exposed to lead on a continuous basis; (4) the food preparation, storage, dining, and dishwashing areas are infested with vermin (5) they are forced to consume their meals in a crowded, noisy dining area and permitted a maximum of twenty minutes to consume their meals; (6) inmates who are known to be explosive and unpredictably violent are intentionally housed with inmates known to be non-violent; (7) inmates who are known to be TB and HIV positive are housed in direct proximity to the plaintiffs in the general population and are permitted to work in direct contact with the food in the dining facility; (8) they are required to submit to military haircuts every two weeks; (9) they are frequently subjected to scrutiny while performing private bodily functions, showering, and changing clothes; (10) during the midmorning and evening counts, they are required to abase themselves to the guards; (11) during formal proceedings, they are required to stand at attention and render formal miliary courtesies with attendant military "Report," even though they are discharged from the military and considered by law to be civilians; (12) the defendants enact new or newly interpreted rules and conflicting guidelines on a "nearly daily basis;" (13) plaintiffs are prohibited from refusing non-life-saving medical treatment or to take prescribed medication, even if known to be harmful due to allergies or a dangerous mixture with other medications; (14) medications are dispensed by unqualified and untrained personnel; (15) not all rules for which they may be disciplined are enumerated in the Manual for the Guidance of Inmates (MGI); (16) the mattresses they are forced to utilize are not cleaned or sterilized between users; (17) their domiciles do not have any smoke or fire detection equipment; (18) the defendants have implemented a "crack down" in response to litigation filed by plaintiffs and other inmates; (19) plaintiffs and other inmates are routinely used as props for guard force training; (20) body alarm and whistle alarm drills are often conducted in the domiciles between 10:00 p.m. and 5:00 a.m., causing sleep deprivation; (21) many new guards are routinely "formed up to create a shakedown gauntlet wherein inmates are frisk searched dozens of times in a mere 150 feet between the Castle and Pope Hall," which causes the plaintiffs to suffer "uncountable assaults;" and (22) plaintiffs are compelled to use USDB phones at high rates to call friends and family, and they are not permitted to utilize alternative long distance services.
Plaintiffs also allege the defendants have violated their Fifth Amendment rights. First, they claim that in order to be seriously considered for a custody elevation, for restoration of any forfeited good conduct time, or for parole or clemency, they must "in effect, retract their steadfastly maintained `Not Guilty' pleas, and `accept responsibility for confining offense(s).'" Amended Compl. ¶¶ 52-54. Second, they claim they are required to be informants, not only against other inmates, but against themselves as well, and they are subject to disciplinary action for their failure to do so. Third, they claim they may be punished for conduct for which they have no adequate notice.
Plaintiffs also allege the defendants have violated their First Amendment rights. First, they claim the defendants have implemented a "crack down" in response to litigation filed by them and other inmates, which they contend punishes them for exercising their First Amendment rights to redress grievances and access to the courts. Second, they claim they are prohibited from making any complaint or grievance which may "anger or irritate" a staff member, id. ¶ 81, which also violates their right to redress grievances. Third, they claim that one of the authorized punishments for any misconduct is DTP Bibliotherapy, which, according to the plaintiffs, causes them to live in fear that their First Amendment rights to the free exercise of religion may be violated. Fourth, they allege they are prohibited from having any contact with the media unless they obtain advance permission and all material is submitted for review and censorship. Fifth, they claim their privileged mail is subject to inspection and being "thoroughly screened," which they claim violates their rights to unhindered access to the courts and abrogates their attorney/client privilege.
Ricks and Marrie both claim they have been the victims of sexual assault. On November 8, 1997, Ricks claims a guard sexually assaulted him during a "routine" frisk search as he was leaving the dining facility. The guard allegedly placed his hands into Ricks's pants, caressed his buttocks, and stroked his genitalia. According to Ricks, the guard who assaulted him is well known for committing such assaults. Ricks attempted to redress his grievance, but according to him, his complaint was summarily rejected.
On January 13, 1998, Ricks claims he was again sexually assaulted by another guard during a frisk search as he was leaving the dining facility. The guard allegedly caressed his lower stomach, caressed his buttocks, and struck him in the genitals with sufficient force to cause him several hours of pain. Ricks claims the defendants completely ignored his attempt to report and redress his grievance.
On January 24, 1998, Marrie claims he was sexually assaulted by a guard during a frisk search as he was exiting the dining hall. He contends that his attempt to redress his grievance was also met with indifference.
According to the plaintiffs, the dining facility is equipped with metal detectors and hand-held "Garrett" wands, which precludes the necessity of pat frisk searches. However, the plaintiffs claim the defendants "routinely circumvent the equipment and procedures ... in order to facilitate abusive treatment." Id. ¶ 112.
Certain claims in the plaintiffs' complaint relate only to Ricks. On February 14, 1997, Ricks claims a prison official confiscated a page of notes from him that were located on his desk in the law library. Later that evening, a prison official interrogated him about the notes. During the interrogation, Ricks claims he told the official that the notes were a "work product for a privileged correspondence with the United States Attorney General." Id. ¶ 116. Ricks claims that, with the exception of two questions concerning where the notes were found, the interrogation focused primarily on the contents of the notes and their intended purpose. After the interrogation, Ricks was placed in 4-Base Maximum Custody. The next day Ricks was informed that he was being charged with "Unauthorized Writing." On February 21, 1997, Investigator Doyle interviewed Ricks concerning the charge. Doyle claimed that the basis of the charge was not the contents of the notes, but where they had been left.
Ricks was housed in Maximum Custody Punitive isolation until the afternoon of February 25, 1997.1 He claims he should have been placed in 6-Base, Administrative Segregation — Pending Investigation, not the 4-Base Maximum...
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