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BYRD v. MOSELEY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


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

MEMORANDUM OPINION OF CHARLES R. 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 ARE ENTITLED TO QUALIFIED IMMUNITY.

 To state a claim for retaliation, the plaintiff must allege that "he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (citing Rizzo v. Dawson, 778 F.2d 527, 530-31 (9th Cir. 1985)); see Thornburgh v. Abbott, 490 U.S. 401, 412-14, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989) (holding that prison administration may infringe upon prisoners' First Amendment rights as long as the infringement is "reasonably related to legitimate penological interest"). The plaintiff must also show that the protected conduct -- in this case, the filing of lawsuits -- was a substantial factor, or motivating factor in the decision of the defendant to retaliate. Mt. Healthy School District v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).

 Government officials performing discretionary functions, however, "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 (1985); Moore v. Valder, 314 U.S. App. D.C. 209, 65 F.3d 189, 1995 WL 557406 at *2 (D.C. Cir. 1995) (citing Butz v. Economou, 438 U.S. 478, 504, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978)). These functions include those commonly performed by prison personnel. See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 206-07, 88 L. Ed. 2d 507, 106 S. Ct. 496 (1985) (federal prison disciplinary committee members and warden entitled to qualified immunity in suit claiming that administrative detention for inciting work stoppage violated prisoner's constitutional rights); Procunier v. Navarette, 434 U.S. 555, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978) (state prison officials enjoyed qualified immunity in § 1983 actions); Knox v. McGinnis, 998 F.2d 1405, 1409-10 (7th Cir. 1993) (correctional officers entitled to qualified immunity in suit claiming that use of a black box chaining the prisoner's hands and legs violated the prisoner's constitutional rights).

 While the qualified immunity analysis established by the United States Supreme Court in Harlow ordinarily involves an objective standard, the United States Court of Appeals for the District of Columbia Circuit has understood Harlow "to allow inquiry into subjective motivation where an otherwise constitutional act becomes unconstitutional only when performed with some sort of forbidden motive." Crawford-El v. Britton, 93 F.3d 813, 817 (D.C. Cir. 1996) (Williams, J.). Such an inquiry is necessary in this case because the motivation of the defendants' alleged actions is what renders them unconstitutional.

 In Crawford-El v. Britton, the Court of Appeals for this circuit recently held that a "§ 1983 or Bivens plaintiff who seeks damages from a government official for a constitutional tort must prove the defendant's unconstitutional motive (where that is an element of the tort) by clear and convincing evidence" to withstand a motion for summary judgment on the grounds of qualified immunity. Id. at 1 (Ginsburg, J., concurring) (summarizing the holding of the Court). *fn3" Thus, the Court must review the plaintiff's pleadings to determine whether he has shown, by clear and convincing evidence, that Messrs. Moseley and Roach possessed the requisite unconstitutional motive -- namely, a desire to retaliate against the plaintiff for exercising his First Amendment rights.

 A. William E. Moseley

 The plaintiff fails to allege that William E. Moseley, an employee of the District of Columbia Department of Corrections, engaged in conduct motivated by a desire to retaliate against the plaintiff for filing an earlier lawsuit. Rather, he alleges that defendant Moseley simply was carrying out the orders of defendant Roach. In fact, Mr. Roach is the only defendant to whom the plaintiff attributes a retaliatory motive. Thus, the plaintiff fails to show, by clear and convincing or otherwise, that defendant Moseley possessed the requisite unconstitutional motive for a § 1983 retaliation claim. The Court therefore shall grant summary judgment in favor of defendant Moseley.

 B. David D. Roach

 Consistent with the liberal treatment generally afforded pro se litigants, the Court has provided notice to the plaintiff in its May 17, 1996 Show Cause Order that any factual assertions contained in the affidavits and other attachments in support of a Motion for Summary Judgment will be accepted by the Court as true unless the plaintiff submits his own affidavit or other documentary evidence contradicting such assertions. See Neal v. Kelly, 295 U.S. App. D.C. 350, 963 F.2d 453, 456 (D.C. Cir. 1992); Local Rule 108; Fed. R. Civ. P. 56(e). Notwithstanding the Court's notice as to the summary judgment rule, and the Court's August 22, 1996 Order granting the plaintiff an extension of time within which to file a response to the defendants' pleadings, the plaintiff has failed to file any declarations, affidavits, or documentary evidence to controvert the facts as propounded by the defendants. Accordingly, the Court will accept as true the facts set forth in the declaration of David D. Roach and other attachments in support of his Motion for Summary Judgment.

 In his July 31, 1996 declaration, defendant Roach states that the membership of Take It From Me, Inc. initially selects the inmates who participate in their program, and that he merely approves or disapproves of the candidates submitted to him by the membership. He further asserts that the organization's membership never submitted the plaintiff's name for approval, and, thus, he never had the opportunity to consider the plaintiff's participation in the program. Because the plaintiff did not controvert these assertions, the Court shall take them as true. Doing so, the Court finds that the plaintiff has not shown, by clear or convincing evidence or otherwise, that defendant Roach prevented him from participating in the Take It From Me, Inc. program in retaliation for his earlier lawsuit.

 Although the plaintiff makes conclusory allegations that defendant Roach may have pre-emptively acted to keep his application from being voted upon by the membership, he makes no allegations that such action on the part of defendant Roach could bind the organization's membership. The plaintiff's allegations, without more, do not constitute clear and convincing evidence that defendant Roach possessed the requisite unconstitutional motive, in light of Mr. Roach's uncontroverted declaration that he played no role in the process. Accordingly, the Court shall grant summary judgment in favor of defendant Roach.

 IV. THE COURT SHALL DENY THE PLAINTIFF'S MOTION TO DENY THE DEFENDANTS REPRESENTATION BY THE CORPORATION COUNSEL AND HIS MOTION FOR LEAVE TO SEEK DISCOVERY.

 In his Motion to Deny the Defendants Representation by the Corporation Counsel, the plaintiff argues that, by virtue of their status as private citizens, the defendants are not entitled to representation by the District of Columbia's Office of Corporation Counsel. The Court finds this argument without merit and, accordingly, shall deny the Motion.

 The Court also shall deny the plaintiff's Motion for Leave to Seek Discovery. Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to summary judgment before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Unable to overcome the defendants' defense of qualified immunity, the plaintiff is not entitled to discovery.

 CONCLUSION

 For the foregoing reasons, the Court shall dismiss the above-entitled action with respect to defendant Take It From Me, Inc., shall grant summary judgment in favor of defendants William E. Moseley and David D. Roach, and shall deny any and all outstanding motions. The Court shall issue an Order of even date herewith, consistent with the foregoing Memorandum Opinion.

 CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 ORDER

 For the reasons set forth in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 16th day of September, 1996,

 ORDERED that the above-entitled case shall be, and hereby is, DISMISSED, WITH PREJUDICE, with respect to defendant Take It From Me, Inc.; and, it is

 FURTHER ORDERED that the defendants William E. Moseley and David D. Roach's Motions for Summary Judgment shall be, and hereby are, GRANTED; and, it is

 FURTHER ORDERED that the Plaintiff's Motion to Deny Defendants Representation By The Corporation Counsel's Correctional Litigation Section, his Motion for Leave to Seek Discovery, and any and all other outstanding motions shall be, and hereby are, DENIED; and, it

 FURTHER ORDERED that the above-entitled case shall be, and hereby is, DISMISSED from the dockets of this Court

 CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE


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