Neal v. Lewis
| Decision Date | 20 July 2004 |
| Docket Number | No. 01-3434-JAR.,01-3434-JAR. |
| Citation | 325 F.Supp.2d 1231 |
| Parties | Aldred NEAL, Plaintiff, v. D.F. LEWIS, et. al, Defendants. |
| Court | U.S. District Court — District of Kansas |
Aldred Neal, Lansing, KS, pro se.
Matthew W. Ricke, Williams, Gaumer & Rick, LLC, Kingman, KS, Brian D. Sheern, Kansas Attorney General, Rebecca A. Weeks, Topeka, KS, for Defendants.
MEMORANDUM ORDER AND OPINION GRANTING SUMMARY JUDGMENT
This matter comes before the Court on the Motion for Summary Judgment (Doc. 52) filed by defendants D.F. Lewis (Correctional Officer), D. Bratton (Unit Team Manager), Michael Nelson (Warden), K. Dutton (Sergeant CSI), J. Spilker (Unit Team Manager), Don Thomas (Deputy Warden of Programs), and William L. Cumming (Secretary of Corrections).
Plaintiff filed this action, pro se, seeking injunctive relief and damages pursuant to 42 U.S.C. § 1983. Plaintiff alleges that these defendants, in their "individual and personal" capacities, violated his civil rights, by interfering with his religious observance in violation of the First and Fourteenth Amendments. Plaintiff, a Shiite Muslim, alleges that while he was confined at the El Dorado Correctional Facility defendants: (1) violated his rights to practice his religion and to receive and possess religious materials; (2) denied him due process by denying him a pre-deprivation hearing prior to the seizure and destruction of his books; (3) and violated his rights by providing materials for other faiths but not for Shiite Muslims.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."1 The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.2 Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."3
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.4 Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.5 "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [her] pleading, but must set forth specific facts showing that there is a genuine issue for trial."6 Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.7 The court must consider the record in the light most favorable to the nonmoving party.8
The Court twice granted plaintiff's requests for an extension of time to respond to the summary judgment motion. The Court granted plaintiff a ninety day extension, to December 30, 2003; and a sixty day extension to February 28, 2004. The Court denied plaintiff's third request, in which he sought another ninety day extension to May 30, 2004. Plaintiff finally filed a response on June 15, 2004, but this response is untimely; as such, the Court has disregarded the response.9
Although plaintiff has not timely responded to defendant's motion, this alone does not make summary judgment proper, for plaintiff's burden to respond arises only if the motion is properly supported in the first instance.10 "Accordingly, summary judgment is appropriate under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c)."11 If the evidence presented by the moving party does not satisfy this burden, "summary judgment must be denied even if no opposing evidentiary matter is presented."12 Thus, if a nonmoving party fails to respond to a motion for summary judgment, the court must first examine the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and that the moving party is entitled to judgment as a matter of law.13
Plaintiff Aldred Neal was at all material times, a prisoner housed at the El Dorado Correctional Facility in El Dorado, Kansas. In January 1996, the Kansas Department of Corrections implemented a "Privileges and Incentives Level Program." The purpose of the program was to implement a comprehensive system of earnable offender privileges and provide an effective means of managing the offender population and reinforcing constructive behavior. In order to ensure that the program would be successful, it became necessary to limit family members or friends' ability to purchase items for the prisoner. Kansas Administrative Regulation 44-12-601(q)(1) provides that "all books, newspapers or periodicals shall be purchased through special purchase orders" by incarcerated inmates. The policy has been changed to allow special purchase orders for zero dollars to allow inmates to obtain free books.
The Kansas Department of Corrections has a number of internal management policy and procedures (IMPPs) concerning the operation and management of correctional facilities. These IMPPs include:
(1) IMPP 10-110(VI)(A)(3)(b), which lists legitimate concerns for order or security of the prison as including: (1) Proper utilization of available space; (2) Safety from fire and other physical hazards; (3) Dangerousness of the item, including its potential for use as a weapon; or, (4) The item's value or attractiveness encourages conflicts or theft;
(2) IMPP 12-120, which requires that books sent to a prisoner be sent directly from the publisher or vendor only;
(3) IMPP 12-120, which states that the total number of books allowed in a prisoner's cell is 15; and that these 15 books may include a dictionary, a thesaurus, the primary religious text of a prisoner's faith, and 12 other books chosen by the prisoner;
(4) IMPP 10-110, which lists the Primary text of Islamic religions as the Qur'an;
(5) IMPP 12-120(IX)(B), which lists six different procedures for removing property from prisons that is in violation of prison regulations. These procedures include: (a) Mailing the property to an address of the inmate's choosing at the inmate's expense or, with the approval of the warden, at the facility's expense; (b) Donating the property to a charitable organization; (c) Having the property picked up by an authorized person approved by the warden; (d) Removing and taking the property to a sponsor's address on an approved furlough; (e) Facility staff delivering the property to an address in the locale of the facility, if approved by the warden; (f) If an inmate refuses to designate an approved means of removal, the Warden or designee shall make the designation.
On September 27, 1999, plaintiff was in violation of IMPP 12-120, in that he had more than twelve books in his cell. Defendant Lewis instructed plaintiff to choose the twelve books he wanted to keep in his cell; and advised that the excess books would have to be sent out of the prison. That same date, a "request/authorization to remove personal property" was prepared listing the books which needed to be removed from the Facility and asking plaintiff to determine the method of removal of the books from the Facility. Plaintiff was offered two additional options in addition to the six options available under IMPP 12-120(IX)(B): plaintiff could donate the books to the prison; or plaintiff could donate the books to the Facility Chaplain. These two additional options would have allowed plaintiff access to the books in question. Plaintiff, however, refused to designate his choice.
Instead, plaintiff filed a grievance and an appeal concerning the excess books. After the appeal process ended in June 2000, plaintiff still refused to designate a location for the books. On December 22, 2000, more than fifteen months after the books were removed from plaintiff's cell for the IMPP 12-120 violation, and more than six months after the administrative appeal process was completed, the books were finally destroyed.
Although plaintiff's Complaint names defendants in their "personal and individual" capacities, the allegations are all directed at actions defendants took in their official capacity as officer and employees of the Kansas Department of Corrections and El Dorado Correctional Facility. Congress did not intend to abrogate the immunity of states under the Eleventh Amendment when it enacted 42 U.S.C § 1983. Defendants are entitled to absolute immunity for acts performed in their official capacity, for state officials acting in their official capacity are not persons within the meaning of 42 U.S.C. § 1983.15
Moreover, even if defendants had acted in their personal capacities, qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.16 There is a presumption in favor of immunity for public officials acting in their individual capacities.17 The defense of qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."18 It constitutes "an immunity from suit rather than a mere defense to liability...."19 Defendants having plead the defense of qualified immunity; plaintiff bears a heavy burden, he must show that defendants' actions violated a constitutional or statutory right and that the right allegedly violated was clearly established at the time of the conduct at issue.20
Defendants were...
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