Winnie v. Clarke

• Decision Date: 11 July 1995
• Docket Number: No. 4:CV93-3382.,4:CV93-3382.
• Citation: 893 F. Supp. 875
• Parties: Bradford C. WINNIE, Plaintiff, v. Harold W. CLARKE, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

893 F. Supp. 875

Bradford C. WINNIE, Plaintiff, v. Harold W. CLARKE, et al., Defendants.

No. 4:CV93-3382.

United States District Court, D. Nebraska.

June 7, 1995.

Opinion Granting Reconsideration July 11, 1995.

E. Terry Sibbernsen, Omaha, NE, for plaintiff.

Melanie J. Whittamore-Mantzios, Asst. Atty. Gen., Lincoln, NE, for defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

URBOM, Senior District Judge.

This cause comes before me on the defendants' motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. The plaintiff claims that the defendants denied him his constitutional right to due process and the resultant entitlement to lost wages. The defendants, employees of the Nebraska Department of Correctional Services hereinafter DCS or the Nebraska State Penitentiary hereinafter NSP, claim that they are each entitled to qualified immunity.

I. FACTUAL BACKGROUND

The plaintiff was an inmate at the NSP during the years 1992 and 1993. On June 16, 1992, the plaintiff was randomly chosen and ordered to submit a urine sample for the purposes of detecting the use of illicit drugs. Although the plaintiff informed the officer in charge that he had urinated as recently as fifteen minutes earlier, the plaintiff was still required to submit a sample. For the next two hours the plaintiff attempted to urinate, but was unsuccessful. Thereafter, pursuant to Administrative Regulation 211.1 hereinafter AR 211.1 and based upon the plaintiff's failure to produce a urine sample, he was issued a misconduct report.

On June 20, 1992, a principal hearing was held concerning the plaintiff's alleged misconduct. At the principal hearing the plaintiff requested that inmate Mark Anderson represent him at the subsequent disciplinary hearing. The plaintiff also requested that he be allowed to present three witnesses at the disciplinary hearing: Doug Adams, an NSP Psychologist's Assistant; Dan Danaher, an NSP Physician's Assistant; and Juan Gutierrez, the NSP officer who initially requested that the plaintiff submit a urine sample.

The plaintiff's disciplinary hearing was held on June 24, 1992, and was presided over by the institutional disciplinary committee hereinafter IDC, which initially consisted of the defendants Lynn Wright and Matthew Heckman. Although the hearing was scheduled to begin at 11:15 a.m., the plaintiff's chosen representative failed to appear, and thus the plaintiff was assigned substitute representation and granted a two-hour continuance to prepare. When the disciplinary hearing resumed at 1:40 p.m., the defendant Dallen Johnsen had replaced Defendant Wright as the Chairperson of the IDC. The IDC refused to call either Doug Adams or Dan Danaher as a witness based upon its conclusion that neither person possessed firsthand knowledge of the incident that prompted the plaintiff's misconduct report. An incident report submitted by Doug Adams, however, was considered by the defendants Johnsen and Heckman. The IDC found the plaintiff guilty of drug abuse and ordered that he be placed in disciplinary segregation for seven days.

The plaintiff appealed the IDC's decision to the DCS Appeals Board, which affirmed. Thereafter, the plaintiff appealed the DCS Appeals Board's decision to the Lancaster County District Court. The district court reversed the DCS Appeals Board's decision on July 21, 1993. The next day the plaintiff filed a Step One Grievance with the defendant John Hopkins, Warden at the NSP, requesting that his record be expunged of the misconduct report and that he be reimbursed for lost wages. In a written response, Warden Hopkins explained that the plaintiff's record would be expunged, but that the plaintiff would not receive any lost wages, because the order of the district court did not provide for such, and it was not an NSP policy to pay lost wages. The plaintiff then filed a Step Two Grievance, appealing Warden Hopkins' response. The defendant Karen Shortridge, Assistant Director of the DCS, responded to the plaintiff and stated that she was in agreement with Warden Hopkins.

II. STANDARD OF REVIEW

A motion for summary judgment shall be granted when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Any doubt as to the existence of any issue of material fact requires the denial of the motion. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514-15 (citations omitted).

III. LEGAL DISCUSSION

A. Qualified Immunity

Prison officials are entitled to qualified immunity from suit unless (1) the officials' conduct violates a clearly established statutory or constitutional right; (2) the officials knew or should have known the right was clearly established; and (3) the officials knew or should have known their conduct violated that right. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994).

1. The Lost Wages

The plaintiff argues that the defendants Hopkins and Shortridge violated his constitutional rights by refusing to reimburse him for the wages he lost while in disciplinary segregation. The plaintiff does not dispute the fact that there is no constitutional right to prison wages. Hrbek v. Farrier, 787 F.2d 414, 416 (8th Cir.1986) (citing Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir.1968), cert. denied, 395 U.S. 940, 89 S.Ct. 2010 (1969)). The plaintiff claims, however, that his right to the "payment of back and/or lost wages is pursuant to NDCS Operational Memorandum # 113.17.101 hereinafter OM 113.017.101." (Pl.'s Am.Civil Rights Compl. at 12, ¶ 45.) hereinafter Pl.'s Am.Compl. Furthermore, he states that "he has a legitimate expectation to be paid for work done at NSP Cornhusker Industries," id., pursuant to section 83-183 of the Nebraska Revised Statutes and various DCS and NSP regulations. I find at least two flaws in the plaintiff's argument.

First, the plaintiff does not deny that "the particular provision in OM 113.017.101 that provided that inmates would be paid back wages for days they were suspended on misconduct charges that they were later found innocent of was deleted on December 6, 1988." (Defs.' Br. in Supp. of Mot. for Summ. J. at 17); see (filing 43, Ex. 3C). Therefore, in the absence of the aforementioned provision, OM 113.017.101 does not create a protected property interest in lost wages, and the plaintiff may not properly rely upon it to support his contention that he was deprived of an interest protected by due process. See Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972) (explaining initial inquiry must be whether there has been a deprivation of an interest protected by the Due Process Clause); Miller v. Lovell, 14 F.3d 20, 21 (8th Cir.1994).

Second, although the plaintiff may have "a legitimate expectation to be paid for work done," (Pl.'s Am.Compl. at 12, ¶ 45) (emphasis added), the plaintiff, in actuality, is claiming an expectation to be paid for work that he would have done had he not been placed in disciplinary segregation. None of the evidence that is before me warrants such an expectation. Therefore, I find that neither the U.S. Constitution, the laws of Nebraska, nor the regulations of the DCS or NSP provides the plaintiff with a protected property interest in lost wages. Accordingly, the defendants Hopkins and Shortridge did not violate a clearly established statutory or constitutional right by refusing to reimburse the plaintiff for his lost wages, and thus they are each entitled to qualified immunity.

2. The Right to Representation

The plaintiff contends that he was "denied the right to representation during a disciplinary proceeding." (Pl.'s Am.Compl. at 14, ¶ 49(a).) The plaintiff, however, offers insufficient evidence to support the contention. The plaintiff was initially assigned the legal representative of his choice, and was later assigned substitute legal representation only because the first individual failed to appear. No authority brought to my attention demands that the defendants should have done more. The United States Supreme Court has specifically stated that it is "not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings." Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974). Moreover, the Eighth Circuit has not granted inmates any greater rights than that which the Constitution affords them. Kulow v. Nix, 28 F.3d 855, 857 (8th Cir.1994). Accordingly, I find that the plaintiff has failed to show that he had a clearly established statutory or constitutional...