Smith v. Halford

• Decision Date: 29 August 1983
• Docket Number: Civ. A. No. 82-3051.
• Citation: 570 F. Supp. 1187
• Parties: Jerry Wayne SMITH, Plaintiff, v. Sally Chandler HALFORD, Warden, et al., Defendants.
• Court: U.S. District Court — District of Kansas

570 F. Supp. 1187

Jerry Wayne SMITH, Plaintiff, v. Sally Chandler HALFORD, Warden, et al., Defendants.

Civ. A. No. 82-3051.

United States District Court, D. Kansas.

August 29, 1983.

Jerry Wayne Smith, plaintiff pro se.

Kenneth R. Smith, Asst. Atty. Gen., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is presently before the court upon plaintiff's motion to recuse the undersigned judge, plaintiff's renewed motion for a preliminary injunction, defendants' motion to dismiss, and plaintiff's motion for summary judgment. Having considered each of these motions, the court makes the following findings and order.

Plaintiff's motion to recuse is denied. This motion to recuse was sent to the clerk captioned with the case number of a different case. It was only upon determining the motion in the other case that the court discovered that plaintiff sought recusal in this case as well. Thus, a copy of the motion has been reproduced and filed in this case. Plaintiff has repeatedly been instructed, but continues to neglect, to provide sufficient copies of materials submitted for filing.

Plaintiff alleges as a basis for his motion to recuse that the undersigned judge has not acted promptly on his motions, in particular, the motion for preliminary relief now pending in this case. The preliminary relief sought by plaintiff has already been denied three times in this action. The press of other court business, combined with the frivolous and frequently confused and repetitive state of plaintiff's materials, as illustrated by the two mentioned incidents, has made it more difficult than usual to move this case in an expeditious manner. For example, plaintiff has filed four supplements or amendments to his original complaint, which contain much repetition but require reading, additional responses or pretrial activity. The delay in expediting this case has been due to repetitive and frivolous motions and letters submitted by plaintiff, and the heavy caseload of prisoner cases, rather than any personal bias.

More importantly, plaintiff's allegations in his affidavit submitted to demonstrate personal bias are nothing more than complaints concerning prior rulings and the handling of plaintiff's cases by this judge. A judge may not be disqualified upon such allegations. United States v. Goeltz, 513 F.2d 193 (10th Cir.), cert. denied 423 U.S. 830, 96 S.Ct. 51, 46 L.Ed.2d 48 (1975); Knoll v. Socony Mobil Oil Co., 369 F.2d 425 (10th Cir.1966), cert. denied 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 138 (1967). Plaintiff fails to state the requisite personal and extrajudicial origin for the claimed bias of the undersigned judge. Davis v. Cities Service Oil Co., 420 F.2d 1278 (10th Cir.1970); United States v. Falcone, 505 F.2d 478 (3rd Cir.1974), cert. denied 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). Thus, the affidavit is clearly insufficient. When an affidavit for recusement is insufficient, it is a judge's duty not to disqualify himself. 28 U.S.C. § 144. Accordingly, the motion for recusal shall be denied.

Plaintiff's motion for preliminary relief is denied for the fourth time. Injury such as loss of wages, which may be fully compensable by an award of money damages after trial, is not irreparable. Thus, plaintiff still fails to make the requisite showing of irreparable harm.

In anticipation of determining defendants' motion to dismiss and plaintiff's motion for summary judgment, the court makes the following findings of fact. These facts are gleaned from the affidavits, exhibits and pleadings submitted by all parties and appear to be undisputed.

1. On February 9, 1982, plaintiff was confined at the Kansas Correctional Institution, Lansing, Kansas hereinafter KCIL. There he formed a liaison with another inmate, Milda Sandstrom, and began to cause some strain at the institution. By letters to various staff and legislators and discussions with staff, these two inmates attempted to persuade prison officials to hold in segregation longer than expected another inmate who had attacked Mrs. Sandstrom. They also attempted to have Ten Thousand Dollars ($10,000) worth of personal jewelry sent to Sandstrom by writing a legalistic, threatening letter to its caretaker, and additionally were charged and found guilty of "unauthorized dealing" for attempting to transfer Six Hundred Dollars ($600) from Sandstrom's bank account to Smith's. Furthermore, the two were spending three to five hours together each night ostensibly doing legal work while other inmates complained that much of that time was personal and deprived others of access to research facilities. Upon release from segregation of the inmate who had attacked Sandstrom, Sandstrom, with the help of plaintiff, wrote a letter to Director Halford with copies to the state secretary of corrections and state legislators criticizing the handling of the attack incident and threatening suit. This letter was received by defendant Halford on February 9, 1982.

2. On this date, Sandstrom was informed by Deputy Director Callison that Smith would no longer be allowed to assist her with her legal work. The director and deputy director had discussed this possible action prior to the February 9 letter, which was "more or less the last straw." Plaintiff Smith was also informed of this decision on that date.

3. Plaintiff Smith told Deputy Director Callison and Director Halford that he would not adhere to this directive.

4. Several days later the director and deputy director decided to permit plaintiff to work with Sandstrom one evening a week, but plaintiff refused, stating he would have to have unlimited time outside his working hours to work on Sandstrom's legal problems. Plaintiff was also offered to be allowed to assist Sandstrom one evening a week from 6:30 to 8:30 p.m. and any other inmate all the other evenings, but he told Deputy Director Callison that "under no circumstances" would he accept this offer.

It is disputed whether or not plaintiff was told that he would be transferred to the Kansas State Penitentiary hereinafter KSP if he continued to refuse to abide by these restrictions.

5. On March 16, 1982, plaintiff received his yearly institution review wherein it was commented that he was having problems in dealing with staff members because he was continuously contesting rules. Plaintiff disagreed with this assessment and "refused to sign or acknowledge" the report.

6. On April 20, 1982, plaintiff was called to the administration building and was asked by Correctional Officer Maiden how he had made an appointment with a local dentist. Plaintiff, by his own account, told the officer to either check with the appointment nurse or call the dentist himself. Plaintiff claims he was again threatened with being returned to the KSP. Plaintiff was then called into the control room by Deputy Director Callison and Correctional Officer Maiden, where he again refused to explain how he had obtained the dental appointment. That afternoon two incident reports were delivered to plaintiff and he was informed that he was being transferred to the KSP. He was charged with refusing to obey a direct order and insubordination or disrespect to an officer or other employee. As a result of his reaction to these charges, plaintiff was subsequently also charged with threatening or intimidating an officer or other employee. Over his objections, plaintiff was not allowed to return to his quarters and was immediately transported without a prior hearing.

7. Prior to this transfer, plaintiff had been working at "the Zephyr program" for over one year, was learning a trade and was paying taxes and room and board. His participation in this program was terminated without a hearing.

8. On May 5, 1982, at the KSP, plaintiff was afforded a disciplinary hearing on the charge of "threatening or intimidating an officer or employee." According to him, evidence was received, he appeared and testified, and he was found guilty. He was sentenced to one hundred eighty (180) days in segregation; however, because of his institutional record, one hundred twenty (120) days were suspended so that he was required to serve only sixty (60) days. The charge of refusing to obey a direct order was dismissed. The third charge was heard at a later date. Plaintiff was found guilty of disrespect to an officer and penalized with five (5) days in segregation and a Five Dollar ($5) fine.

9. This statement of the facts does not include allegations which are nothing more than conclusions without any factual support.

On the basis of these facts, plaintiff asserts that disciplinary actions taken against him were violative of due process; that the termination of his participation in the work release program was without sufficient due process; that defendants violated his and other inmates' rights of access to the courts and to due process and equal protection by restricting his contact with and ability to assist Sandstrom and other inmates with their legal problems; that inmates at KCIL are not provided with adequate access to the courts; and that his transfer to the KSP was retaliatory and without sufficient due process. The court is asked to declare defendants' acts unconstitutional, to enjoin further violation of plaintiff's constitutional rights, to compel his return to KCIL and reinstatement to the work release program at Zephyr, and to award money damages.

Having thoroughly reviewed all pleadings, motions, affidavits, exhibits and other materials filed in this case for the purpose of determining defendants' and plaintiff's dispository motions, the court finds that all of plaintiff's claims are subject to summary dismissal for the reasons set forth hereinafter. Because the court has not limited its consideration to the pleadings, defendants' motion to dismiss is hereby construed as a motion for summary judgment.

Defendants' motion for summary dismissal should be granted with respect to plaintiff's...