provide recommended programs fails to state a due process claim.
Second, prisoners generally do not have a liberty interest in being housed in a prison at a particular security level. See Meachum v. Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). In Meachum, the Court held that the Due Process Clause itself did not create a liberty interest in freedom from transfer to a maximum security prison, albeit one with burdensome limitations. Id. To be housed in a maximum security prison is "within the normal limits or range of custody which the conviction has authorized the State to impose." Id. In addition, Plaintiff alleges no state-created liberty interest here; therefore, Plaintiff fails to state a Due Process claim upon which relief may be granted regarding reclassification hearings.
For the forgoing reasons, the Court will GRANT the Defendants' Motion to Dismiss with respect to Plaintiff's claims regarding the alleged failure to provide him with drug counseling and reclassification hearings.
4. The Alleged Denial of Plaintiff's Right to Address the Court.
Plaintiff alleges that he was denied his First Amendment right to "freely . . . address the court without hinderance [or] fear of retaliation" when the Defendants allegedly retaliated against him by refusing to enroll him in the drug program, process his inmate grievance form properly, or transfer him to a minimum security facility. Complaint 94-2770 at PP 23-24; see also Plaintiff's Opp. at P 4. Because Plaintiff fails to establish that the state impermissibly infringed upon his right to engage in a protected activity, and because Plaintiff does not allege that the allegedly retaliatory action failed to advance legitimate goals of the correctional institution, the Court will grant the Defendants' Motion to Dismiss Plaintiff's retaliation claim.
To state a First Amendment claim for retaliation a prisoner must allege the following: (1) "the type of activity he engaged in was protected under the First Amendment;" (2) "the state impermissibly infringed on his right to engage in the protected activity;" and (3) "the retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." See Rizzo v. Dawson, 778 F.2d 527, 530-31 (9th Cir. 1985).
First, Plaintiff must allege that the type of activity he engaged in was protected under the First Amendment. Here, Plaintiff alleges that he has been retaliated against "since the filing of [his] civil complaint" and that his right to "address the court" is protected under the First Amendment. Complaint 94-2770 at P 16. It is established that the right of access to the courts is subsumed under the First Amendment right to petition the government for redress of grievances. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Thus, Plaintiff adequately alleges that he was engaging in activity protected under the First Amendment.
Second, Plaintiff must allege that the state impermissibly infringed on his right to engage in the protected activity. "Prison officials may not retaliate against an inmate for exercising a constitutionally protected right." Adams v. James, 784 F.2d 1077, 1082 (11th Cir. 1986); see Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988) ("Intentional obstruction of a prisoner's right to seek redress of grievances 'is precisely the sort of oppression that . . . section 1983 [is] intended to remedy.'" (quoting Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987))). Plaintiff alleges retaliation for his filing of a civil complaint. Complaint 94-2770 at P 16.
However, retaliation also involves a causation element that was enunciated by the United States Supreme Court in Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568, (1977). A plaintiff alleging retaliation for the exercise of constitutionally protected rights must initially show that the protected conduct was a "substantial factor" or "motivating factor" in the defendant's decision. Id. at 287. At that point, the burden shifts to the defendant to establish that it would have reached the same decision even in the absence of the protected conduct. Id. Here, Plaintiff has merely alleged that the challenged state action followed the filing of his Complaint. Plaintiff fails to allege facts that would show his pending litigation was a "substantial" or "motivating" factor in the Defendants' actions. Thus, Plaintiff does not sufficiently allege the second element of a claim for retaliation.
Further, Plaintiff fails to allege that the challenged actions did not advance legitimate penological objectives, or that the actions were otherwise not narrowly tailored to achieve such objectives. Unlike an ordinary citizen's, the First Amendment rights of prisoners may be permissibly restricted by prison authorities because of institutional needs. See Rizzo, 778 F.2d at 532. A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correctional system. See Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). Thus, Plaintiff fails to allege the third requirement of a claim for retaliation.
In short, "bare allegations of arbitrary retaliation" are not enough by themselves to avoid dismissal." Rizzo, 778 F.2d at 532 n.4. Accordingly, the Court shall GRANT Defendant's Motion to Dismiss Plaintiff's claim regarding alleged retaliation.
5. The Alleged Failure to Follow Grievance Procedures
Plaintiff claims that the Defendants violated his right to Due Process by failing to follow grievance procedures when they refused to provide Plaintiff with a receipt of proof that he had filed a grievance. Complaint 95-29 at PP 8-9. For a complaint to be actionable under § 1983, it must allege the violation of some right, privilege, or immunity secured by the Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Thus, the first inquiry for a Due Process claim is whether such a right, privilege, or immunity exists.
Prison inmates do not have a constitutionally protected right to a grievance procedure. See, e.g., Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 138, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977) (Burger, J., concurring) ("I do not suggest that the [grievance] procedures are constitutionally mandated."); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (holding that "the Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by a state") (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898, 102 L. Ed. 2d 231, 109 S. Ct. 242 (1988)); see also Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (no constitutional or state created right to grievance procedure; prison officials may place reasonable limits on prisoner's access to grievance procedure). "A prison grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment." Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. De Robertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)).
Because a prison grievance procedure does not confer any substantive constitutional right upon prison inmates, prison officials' failure to comply with the grievance procedure is not actionable. See Brown v. Dodson, 863 F. Supp. 284 (W.D. Va. 1994). Accordingly, the Court shall GRANT the Defendants' Motion to Dismiss Plaintiff's claims regarding the alleged failure to follow grievance procedures.
D. The Defendants are Entitled to Qualified Immunity.
To the extent that Plaintiff is suing the Defendants in their individual capacities, the doctrine of qualified immunity protects them from suit. As stated in Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982):
government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985).
Plaintiff's allegations do not state a cognizable claim of any constitutional wrongdoing by any of the Defendants. To the extent Plaintiff contends that the Defendants are liable for the possible negligence of their subordinates, these allegations must fail because the doctrine of respondeat superior is not available under § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1259 (D.C. Cir. 1987) (fellow government employees cannot be held liable under the theory of respondeat superior for either constitutional or common law torts); Smith-Bey v. District of Columbia, 546 F. Supp. 813, 814 (D.D.C. 1982) (same).
In addition, there is a heightened pleading requirement in cases against public officials. "Conclusory allegations of unconstitutional . . . conduct will not withstand a public official's dispositive pre-trial motion." Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237, 257 (D.C. Cir. 1987).
Plaintiff does not set forth sufficient facts to elevate his claim above conclusory allegations against the Defendants. Thus, the Court shall GRANT the Defendants' Motion to Dismiss Plaintiff's claims against the Defendants in their individual capacities.
E. Plaintiff Fails to State a Claim upon which Relief can be Granted against the Defendants in their Official Capacities.
It is well settled that if Plaintiff is suing the Defendants in their official capacities, the suit is treated as a suit against the District of Columbia. Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). However, under § 1983, local governments can be sued only where the action alleged to be unconstitutional "implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690-91. Plaintiff does not allege that the Defendants adopted and promulgated a policy, order, regulation, or decision that was implemented by their subordinates in contravention of Plaintiff's constitutional rights. Plaintiff therefore fails to state claim upon which relief can be granted. Accordingly, the Court shall GRANT the Defendants' Motion to Dismiss Plaintiff's claims against the Defendants in their official capacities.
Upon careful consideration of the parties' pleadings in the light most favorable to Plaintiff, the entire record herein, and the applicable law with respect thereto, the Court will enter an Order of even date herewith consistent with the foregoing Memorandum Opinion GRANTING the Defendants' Motion to Dismiss.
June 27, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon consideration of the Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment, the Plaintiff's Opposition thereto, and the applicable law thereto, and for the reasons articulated in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 27th day of June, 1995,
ORDERED that the Defendants' Motion to Dismiss shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the Plaintiff's claims under District of Columbia law shall be DISMISSED, WITHOUT PREJUDICE to refiling in the District of Columbia Superior Court; and it is
FURTHER ORDERED that, in light of the foregoing, the Clerk of Court shall note the above-entitled case as DISMISSED from the docket of this Court.
June 27, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE