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BYRD v. MOSELEY

September 16, 1996

SAMUEL L. BYRD, JR., Plaintiff,
v.
WILLIAM E. MOSELEY, DIRECTOR, TAKE IT FROM ME, INC.; TAKE IT FROM ME, INC.; DAVID D. ROACH, WARDEN, Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court in the above-entitled case are the defendants' Motions to Dismiss, or in the alternative, for Summary Judgment. Also before the Court are the plaintiff's Motion to Deny Defendants Representation By The Corporation Counsel's Correctional Litigation Section and the plaintiff's Motion for Leave to Seek Discovery. In this case, the plaintiff alleges that the defendants retaliated against him for filing a prior lawsuit by denying him participation in an inmate program called "Take It From Me, Inc." Upon careful consideration of the parties' pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed below, the Court shall dismiss the cause against Take It From Me, Inc., and shall grant summary judgment in favor of defendants William E. Moseley and David D. Roach. The Court also shall deny the plaintiff's Motion to Deny Defendants Representation by the Corporation Counsel and his Motion for Leave to Seek Discovery.

 BACKGROUND

 The plaintiff, serving a twenty year to life sentence for felony and first degree murder at the District of Columbia's maximum security facility in Lorton, Virginia, claims that on February 6, 1995, he applied for admittance into the "Take It From Me, Inc." inmate program. Take It From Me, Inc. is a private, not-for-profit corporation consisting of inmates at the Lorton Correction Complex who conduct tours of the prison and counsel youth on the repercussions of criminal behavior. The plaintiff alleges that his application was skipped over for membership vote at the direction of defendant Roach, the warden. According to the plaintiff's Complaint, defendant Moseley, the Director of the program, informed the plaintiff that Mr. Roach had ordered the plaintiff's denial of admittance to the program in retaliation for the plaintiff's earlier decision to bring a lawsuit against another staff member.

 In his declaration attached to his Response to the Court's Show Cause Order, defendant Roach asserts that the selection process for the program is as follows: an inmate submits an application which is reviewed by the Program Coordinator and inmates who are currently participating in the program; the active inmates select those inmates who are to participate in the program; and those selections must then be approved by the Program Coordinator. Mr. Roach claims that the active membership did not select the plaintiff to participate in the program, and that he played no role in the decision to deny the plaintiff membership, as the plaintiff's name was not submitted to him by the other inmates in the program for approval.

 DISCUSSION

 I. THE PLAINTIFF'S CAUSE IS A § 1983 ACTION BASED ON THE DEFENDANTS' ALLEGED VIOLATION OF THE PLAINTIFF'S FIRST AMENDMENT RIGHTS BY RETALIATING AGAINST HIM FOR FILING A PREVIOUS LAWSUIT AGAINST ANOTHER PRISON STAFF MEMBER

 Because the plaintiff is before the Court pro se, the Court shall read the plaintiff's Complaint broadly. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). The plaintiff's cause can be characterized most appropriately as a damages action pursuant to 42 U.S.C. § 1983 *fn1" based on the defendants' violation of the plaintiff's First Amendment rights by retaliating against him for filing a previous lawsuit. *fn2" Several courts have held it to be unconstitutional for prison officials to impose or threaten to impose punishment based upon a prisoner's complaints to the courts. See, e.g., Haymes v. Montanye, 547 F.2d 188, 190 (2d Cir.), on remand from 427 U.S. 236 (1976), cert. denied, 431 U.S. 967 (1977); Burton v. Livingston, 791 F.2d 97, 101 (8th Cir. 1986).

 As for other possible claims, it is well established that an inmate has no constitutional right to participate in a particular educational or vocational program. Rhodes v. Chapman, 452 U.S. 337, 348, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981); Garza v. Miller, 688 F.2d 480 (7th Cir. 1982), cert. denied, 459 U.S. 1150, 74 L. Ed. 2d 1000, 103 S. Ct. 796 (1983); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). The plaintiff's allegations therefore fail to state a claim under either the Eighth or Fifth Amendments of the United States Constitution.

 II. THE PLAINTIFF'S CAUSE MUST BE DISMISSED WITH RESPECT TO DEFENDANT TAKE IT FROM ME, INC. BECAUSE THE PLAINTIFF FAILS TO ALLEGE THAT TAKE IT FROM ME, INC. WAS ACTING "UNDER COLOR OF STATE LAW."

 Taken as § 1983 retaliation case, the plaintiff's cause with respect to defendant Take It From Me, Inc. must be dismissed. Under 42 U.S.C. § 1983, a plaintiff may seek redress when a person "acting under color of state law" deprives the prisoner of rights guaranteed by the Constitution or under federal law. 42 U.S.C.A. § 1983. Here, the plaintiff's Complaint makes no allegations that Take It From Me, Inc., a private not-for-profit organization, whose members are private citizens, was acting "under color of state law." In fact, the defendant has stated unequivocally that Take It From Me, Inc. is a "private business entity," not entitled to representation by government counsel. See Plaintiff's Motion To Deny Defendants Representation By the Corporation Counsel's Correctional Litigation Section at 1. Nor would anything in the Complaint support a finding that the private organization's conduct is "fairly attributable" to the state. See West v. Atkins, 487 U.S. 42, 49, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988) (stating that if the defendant's conduct satisfies the requirement of state action, it also satisfies "under of color of state law" requirements for § 1983 since it is conduct "fairly attributable" to the state) (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982)). Accordingly, the plaintiff's cause as to the defendant Take It From Me, Inc. must be dismissed.

 III. THE COURT SHALL GRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS WILLIAM E. MOSELEY AND DAVID D. ROACH BECAUSE BOTH DEFENDANTS ...


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