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Dunlap v. Raemisch

United States District Court, D. Colorado

February 9, 2015

NATHAN JERARD DUNLAP, Plaintiff,
v.
RICK RAEMISCH, in his individual and official capacities as Executive Director of the Colorado Department of Corrections, MARK FLOWERS, in his individual and official capacities as Director of Prisons of the Colorado Department of Corrections, TONY CAROCHI, in his individual and official capacities as Director of Prisons of the Colorado Department of Corrections, LOU ARCHULETA, in his individual and official capacities as Director of Prisons of the Colorado Department of Corrections, KEVIN MILYARD, in his individual and official capacities as Deputy Director of Prisons of the Colorado Department of Corrections, JAMES FALK, in his individual and official capacities as Warden of the Sterling Correctional Facility, LARRY REID, in his individual and official capacities as Deputy Director of Prisons of the Colorado Department of Corrections, DONNA SIMS, in her individual and official capacities as Review Committee Member for the Colorado Department of Corrections, J[EREMIAH] CONE, in his individual and official capacities as Approving Housing Supervisor of the Sterling Correctional Facility, JOHN CRUSSELL, in his individual and official capacities as Review Committee Member for the Colorado Department of Corrections, MICHELLE NYCZ-HALLIGAN, in her individual and official capacities as Review Committee member for the Colorado Department of Corrections, DAVE SCHERBARTH, in his individual and official capacities as Appointing Authority for the Colorado Department of Corrections, JEFF PE[T]ERSON, in his individual and official capacities as Review Committee Member for the Colorado Department of Corrections, [MICHELE] WINGERT, in her individual and official capacities as Review Committee Member for the Colorado Department of Corrections, [SCOTT] STURGEON, in his individual and official capacities as Review Committee Member of the Colorado Department of Corrections, and RYAN LONG, in his individual and official capacities as Review Committee Member for the Colorado Department of Corrections, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, Magistrate Judge.

This civil action comes before the court on: (1) the Motion to Dismiss filed by Defendants Raemisch, Carochi, Archuleta, Falk, Reid, Sims, Cone, Crussell, Nycz-Halligan, Scherbarth, Petersen, Wingert, Sturgeon, and Long on March 13, 2014 (Doc. # 37), (2) the Motion to Dismiss filed by Defendant Flowers on March 17, 2014 (Doc. # 40), and (3) the Motion to Dismiss filed by Defendant Milyard on April 16, 2014 (Doc. # 47). Pursuant to the Order Referring Case dated January 15, 2014 (Doc. # 14) and the memoranda dated March 14, 2014 (Doc. # 38), March 18, 2014 (Doc. # 41), and April 17, 2014 (Doc. # 48), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Mr. Dunlap's Responses (filed April 11, 2014 (Doc. # 46) and April 29, 2014 (Doc. # 50)), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Plaintiff, Nathan Dunlap, was convicted and sentenced to death in 1996 for committing four murders in 1993 in Aurora, Colorado. For additional crimes, he was also sentenced to confinement in the Colorado Department of Corrections ("CDOC") for consecutive terms totaling 113 years. See People v. Dunlap, 975 P.2d 723, 734-35 (Colo. 1999) (ruling on direct appeal of death sentence) ( en banc ). Mr. Dunlap filed his initial Prisoner Complaint on or about November 14, 2013. ( See Doc. # 3). At the court's direction, he filed his Amended Prisoner Complaint ("AC") on December 24, 2013. ( See Docs. # 5, # 8, # 9).

Mr. Dunlap brings his AC pursuant to Title 42 U.S.C. §1983, which creates a cause of action where a "person... under color of any statute, ordinance, regulation, custom or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person... to the deprivation of any rights, privileges or immunities secured by the Constitution." ( See Doc. # 9 at 8 of 30). He alleges one claim for relief for violation of his Fourteenth Amendment right to due process. ( See id. at 19 of 30).

Mr. Dunlap alleges that because the CDOC does not have a "death row, " he is confined in administrative segregation ("AdSeg"). (See Doc. # 9 at 8 of 30). The Privilege Level Program ("PLP"), is "[a]n incentive based program based on behavior and program participation consisting of levels I through IV while in Administrative Segregation." (See CDOC Administrative Regulation ("AR") No. 650-03 III. T.). Level I has the most restrictive conditions, and each successive level offers the inmate more privileges. "Offenders with a death penalty sentence will be assigned Administrative Segregation status and will enter administrative segregation status at Level II." (See AR 650-03 IV. A.1. b.).[1] Mr. Dunlap attained Level III of the QLLP, later the PLP, on December 4, 2002.[2] (See Doc. # 9 at 18 of 30). He alleges that he "has never been allowed to progress through the PLP past level 3" or receive most of the privileges available on the PLP levels that are higher than 3...." ( See id. ). He alleges that every review he has received since May 2012 has been "perfunctory, repetitive, and nothing more than a sham or pretext" that fails "to provide any meaningful review process that helps [him] progress through the PLP." ( See Doc. # 9 at 18-19 of 30). Mr. Dunlap seeks declaratory and injunctive relief in the nature of "a meaningful review of his continued placement in extreme conditions that result in an atypical and significant hardship." ( See Doc. # 9 at 23 of 30). He also seeks nominal damages, attorney fees, and costs. ( See id. ).

II. Standard of Review

Defendants move to dismiss the AC pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.[3] To withstand a motion to dismiss under Rule 12(b)(6), a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The burden is on the plaintiff to frame "a complaint with enough factual matter (taken as true) to suggest" that he or she is entitled to relief. Twombly, 550 U.S. at 556.

Because Mr. Dunlap appears pro se, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

III. Analysis

A. Statute of Limitations

Before June 13, 2011, Mr. Dunlap he was confined in AdSeg at the Colorado State Penitentiary ("CSP") of the CDOC. On June 13, 2011, he was transferred to AdSeg at the Sterling Correctional Facility ("SCF"). Defendants argue that Mr. Dunlap's claim as it relates to his confinement in AdSeg at CSP prior to June 13, 2011 is barred by the statute of limitations. The statute of limitations applicable to claims brought pursuant to § 1983 is two years. See Colo. Rev. Stat. § 13-80-102(g) (establishing a two-year limitation period for "all actions upon liability created by a federal statute where no period of limitation is provided in said federal statute" and for "all other actions of every kind for which no other period of limitation is provided"); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993) (applying Colo. Rev. Stat. § 13-80-102 to § 1983 claim). "Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action." Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). See also Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994) ("The statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of injury which is the basis of his action.") The portion of Mr. Dunlap's claim that arises from events that he alleges occurred prior to June 13, 2011 appears to be barred by the two-year statute of limitations. Since the filing of the Motions, Mr. Dunlap has clarified that he is not asserting "any claim relating to his confinement while at" the CSP, thus rendering moot Defendants' statute of limitations argument.

B. Due Process Claim

Mr. Dunlap alleges deprivation of his liberty interest without due process in violation of the Fourteenth Amendment based on his continued placement in AdSeg without "meaningful review." ( See Doc. # 9 at 19 of 30). He does not challenge his placement in AdSeg or the conditions of confinement in AdSeg. ( See Doc. # 9 at 9 of 30, ¶¶ 8, 9). Mr. Dunlap challenges "the denial of his right to meaningful reviews that would enable him to progress... to incrementally better conditions within adseg." (See Doc. # 9 at 9, 17-10 of 30).

The necessary predicate to a due process claim is a deprivation of a protected interest. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) ("The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property' or liberty.'") (citing U.S. Const., amend. XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law")). Prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration"); Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) ("classification of a plaintiff into segregation does not involve deprivation of a liberty interest independently protected by the Due Process Clause") (quotation and alterations omitted).

However, in Sandin v. Conner, the Supreme Court held that administrative segregation may implicate a liberty interest protected by the Due Process Clause if it "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " 515 U.S. at 484, or if it "will inevitably affect the duration of his sentence." Id. at 487. See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) ("the Supreme Court held that a deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'") (quoting Sandin, 515 U.S. at 484). "[T]he touchstone of the inquiry... is not the language of regulations regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life." Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks and citation omitted). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S. at 485-87).

The Tenth Circuit has identified relevant factors to consider when determining whether placement in administrative segregation creates a liberty interest: (1) whether "the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) [whether] the conditions of placement are extreme; (3) [whether] the placement increases the duration of confinement...; and (4) [whether] the placement is indeterminate." Estate of DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007). These factors are not necessarily dispositive. "[T]he proper approach is a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012). "[A]ny assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." DiMarco, 473 F.3d at 1342 (citation omitted).

First, the court may assume that Mr. Dunlap's confinement in AdSeg at the SCF relates to and furthers a legitimate penological interest. See Rezaq v. Nalley, 677 F.3d 1001, 1014 (10th Cir. 2012) ("This court has upheld an inmate's placement in segregation, even for an extended period of time, for safety reasons.") (citing Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007) (deferring to Wyoming prison's determination that "DiMarco might be a risk if introduced to the general population of the prison")); Scheanette v. Riggins, No. Civ.A. 9:05CV34, 2006 WL 722212, at * 10 (March 15, 2006) ("inmates convicted of capital murder represent a significant risk to the security of the institution, and the segregation of such individuals, for the protection of staff, other inmates, and themselves, is reasonably related to a legitimate penological purpose").[4]

Second, the court considers whether the conditions of Mr. Dunlap's confinement are extreme. The PLP has five "Privilege Levels, " denominated I, II, IlI, IV A, and IV B. ( See AR 650-03 IV.H. (Doc. # 37-1 at 8 of 25)). Level II is the "initial entry level placement for all offenders into administrative segregation." ( See AR 650-03 IV.H.2. (Doc. # 37-1 at 9-10 of 25)). Level III, at which Mr. Dunlap has been classified since 2002, "is for offenders who have demonstrated appropriate behavioral and level compliance, demonstrated proper interaction with staff and other offenders and maintained suitable cell compliance." ( See AR 650-03 IV.H.3. (Doc. # 37-1 at 10-11 of 25)). Level IV A, also called "Cognitive Programming, " is designed as a transition level between administrative segregation and general population. ( See AR 650-03 IV.H.4. (Doc. # 37-1 at 11-12 of 25). Level IV B is for offenders who have completed the first three levels but who continue to pose a substantial security risk if they were returned to general population. ( See AR 650-03 IV.H.5. (Doc. # 37-1 at 12-13 of 25)). Progress through the Privilege Levels is estimated "typically" to take a minimum of nine months. ( See AR 650-03 IV.G.1. (Doc. # 37-1 at 7 of 25)).

At Level III, Mr. Dunlap is allowed certain privileges. ( See AR 650-03 IV.H.3.d. (Doc. # 37-1 at 10-11 of 25)). He alleges that "death sentenced prisoners can have the same canteen privileges as those that are available to prisoners" at Level IV.B. ( See Doc. # 9 at 15, 29 of 30). Mr. Dunlap alleges that his cell "is approximately 80 square feet of floor space, " that he "is confined there for about 23 to 24 hours per day, " and that he eats all meals alone in the cell. ( See Doc. # 9 at 10-11 of 30). His cell has "two windows exposed to the outside that are approximately 38 inches wide and six inches tall." ( See Doc. # 9 at 10 of 30). The lights are dimmed between 10:00 p.m. and 6:00 a.m.. ( See Doc. # 9 at 10 of 30). He "is allowed one hour a day five days a week, out of the cell he resides in to be used to spend time in a recreation area by himself" and "[h]e is allowed to shower on the same days he is allowed to use the recreation area." ( See Doc. # 9 at 11 of 30).

The AC does not state facts equating to the sort of extreme conditions where courts have found the test of Sandin met. In Rezaq, the Tenth Circuit panel concluded that conditions at the federal supermax facility in Florence, Colorado (ADX) were not so extreme as to create a liberty interest. 677 F.3d at 1014-15. While the conditions there were harsh, including 23 hours a day in a small cell and all meals alone in the cell, inmates had "the opportunity for outdoor recreation... alone in fenced-in areas slightly larger than their cells, " "television that aired black-and-white educational and religious programming, " and "were permitted five no contact' social visits and two fifteen-minute phone calls per month." Id. at 1014-15. The court concluded that the "conditions at ADX are comparable to those routinely imposed in the administrative segregation setting" and "are not extreme as a matter of law." Rezaq, 677 F.3d at 1015 ("The conditions at ADX, like those at the Ohio supermax prison in Wilkinson, do not, in and of themselves, give rise to a liberty interest because they are substantially similar to conditions experienced in any solitary confinement setting.") (citing Wilkinson v. Austin, 545 U.S. 209, 224 (2005) ("Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities....").

Shortly after Rezaq, the Tenth Circuit determined that a prisoner's due process rights were not violated by his placement in administrative segregation in the Kansas Department of Corrections. Stallings v. Werholtz, 492 F.Appx. 841, 845-46 (10th Cir. July 6, 2012). The court decided that conditions were not extreme where the inmate was confined in a seventy square foot cell twenty-three hours a day, had limited time outside his cell each week and social visits were conducted via videoconferencing. Id. More recently, the Tenth Circuit determined that conditions in long-term administrative segregation in the Wyoming Department of Corrections are not sufficiently extreme to create a liberty interest. McAdams v. Wyoming Department of Corrections, 561 F.Appx. 718, 721-22 (10th Cir. April 9, 2014). "The conditions of LSAT are not pleasant." Id. "McAdams is confined to his cell for twenty-three hours a day; he is limited to one hour of recreation five days a week and three showers a week; the property he is allowed to keep in his cell is restricted; his visits are non-contact; and the lights are on twenty-four hours a day." McAdams, 561 F.Appx. at 721-22. "But these conditions are not extreme." Id. (citing Rezaq, 677 F.3d at 1014-15). See also Denson v. Maifeld, No. 09-cv-02087-WYD-KLM, 2012 WL 4356216, at **3, 8 (D. Colo. Sept. 24, 2012) (conditions did not support a finding of a protected liberty interest where plaintiff was placed in a cell approximately eight feet by ten feet, to which he was confined for twenty-three hours per day, with only one hour allotted for exercise five days a week, the lights in his cell remained on for twenty-four hours per day, he was afforded limited contact with other inmates and prison personnel, and administrative segregation had no definite timeline for release). The court concludes that, as a matter of law, the conditions alleged by Mr. Dunlap are not sufficiently extreme to implicate a liberty interest.

As for the third DiMarco factor, there is no allegation that serving time in AdSeg will lengthen Mr. Dunlap's period of confinement. The first, second, and third DiMarco factors thus weigh against the finding of a liberty interest.

The fourth DiMarco factor addresses whether placement in administrative segregation was indefinite. Mr. Dunlap alleges that he is being denied his right to a meaningful periodic review of his status. He alleges that he has been at Level III for over twelve years and "has never been allowed to progress...." (See Doc. # 9 at 18 of 30). He alleges that the review process is a "sham or pretext" that allows prison officials to keep him confined without progression indefinitely. ( See id. ).

"[A]dministrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates." Toevs v. Reid, 685 F.3d 903, 912 (10th Cir. 2012) (internal quotation marks and citation omitted). "[T]he review must be meaningful; it cannot be a sham or pretext." Id. "[A] meaningful' review for a prisoner in a behavior-modification program is one that evaluates the prisoner's current circumstances and future prospects, and, considering the reason(s) for his confinement to the program, determines whether that placement remains warranted." Toevs, 685 F.3d 903, 912. "In the context of a stratified incentive program such as the [PLP], the review would consider whether the prisoner is eligible to move to the next level." Id. "[T]he review should provide a statement of reasons, which will often serve as a guide for future behavior ( i.e., by giving the prisoner some idea of how he might progress toward a more favorable placement)." Id. In Toevs, the court held that the inmate had not received meaningful reviews. 685 F.3d at 914-15. For example, he was not given meaningful information as to why he was being held at a certain level. Id.

The CDOC's Administrative Regulations provide that "Administrative Segregation Status is designed to be a progressive management process that includes distinct levels (I, II, III, IV A and I V B)...." ( See AR 650-03 IV.G.1. (Doc. # 37-1 at 7 of 25)). "Offenders are afforded the opportunity to progress through privilege levels...." Id. "Some offenders may continue placement on administrative segregation status if indicated by behavior or risk. Progression to general population is dependent on Appointing Authority/Deputy Director/Director Reviews." Id. "Offenders with a death penalty sentence may progress through the privilege level system but will continue to be housed in a manner that is consistent with their continued risk and threat to the department." ( See AR 650-03 IV.G.3. (Doc. # 37-1 at 7-8 of 25)). "The Director of Prisons will approve the management plan for these offenders." Id.

The duration of Mr. Dunlap's placement at Level III AdSeg without any indication of a possibility to progress might be equivalent to indefinite placement. Mr. Dunlap alleges that he did not receive meaningful reviews and the record at this stage does not indicate that he received meaningful reviews. Considering the totality of the circumstances, as Rezaq instructs, the court concludes that based upon the indefiniteness of Mr. Dunlap's confinement in AdSeg, he may state a liberty interest worthy of constitutional protection in progressing to a less restrictive level.

The court acknowledges Defendants' argument that the Toevs opinion does not apply to Mr. Dunlap because the "opinion does not address situations such as placing an inmate in administrative segregation because his conviction is for raping a child, because he is a former law enforcement officer, or because he has raped or murdered other inmates and therefore presents a risk to the safety of the institution." 685 F.3d at 912 n. 8. See also Payne v. Friel, 919 F.Supp.2d 1185, 1200 n. 7 (D. Utah 2013) ("Because Plaintiff is not in any type of behavior-modification program, but is being kept in ad-seg exclusively for security reasons, the Toevs standard is not applicable here."); Prieto v. Clarke, No. 1:12cv1199 (LMB/IDD), 2013 WL 6019215, at * 11 (E.D. Va. Nov. 12, 2013) ("defendants could provide plaintiff with an individualized classification determination using procedures that are the same or substantially similar to the procedures used for all non-capital offenders" in order to comport with minimal due process requirements or could vary the basic conditions of confinement on death row, if only slightly, such that confinement there would no longer impose an atypical and significant hardship on plaintiff."). The present record before the court does not indicate whether security reasons prevent Mr. Dunlap from progressing to a less restrictive level in AdSeg.

Defendants' arguments would be better raised on the sort of factual record that is prepared for summary judgment motions. The court cannot find on the basis of the allegations in the AC and this record that Mr. Dunlap will inevitably fail to show he has a liberty interest or to state a plausible claim.

Accordingly, IT IS RECOMMENDED that the Motion to Dismiss filed by Defendants Raemisch, Carochi, Archuleta, Falk, Reid, Sims, Cone, Crussell, Nycz-Halligan, Scherbarth, Petersen, Wingert, Sturgeon, and Long on March 13, 2014 (Doc. # 37), the Motion to Dismiss filed by Defendant Flowers on March 17, 2014 (Doc. # 40), and the Motion to Dismiss filed by Defendant Milyard on April 16, 2014 (Doc. # 47) be denied.

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiff's waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

Attorneys and Law Firms

Dale Devon Scheanette, Livingston, TX, pro se.

Julia Hamill Murray, Texas Attorney General, Austin, TX, for Office of the Attorney General.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

CLARK, J.

*1 The Plaintiff Dale Scheanette, proceeding pro se, filed this lawsuit complaining of alleged violations of his constitutional rights. This Court ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

Scheanette, a Death Row inmate, complained primarily about the taking of a DNA sample on October 24, 2004. He also raised complaints about the grievance procedures, alleged violations of the Americans with Disabilities Act, an assertion that the Texas prison administration was violating the Racketeer Influenced and Corrupt Organizations Act, and discrimination in various forms against inmates on Death Row.

The Magistrate Judge ordered the prison to furnish relevant records pursuant to Cay v. Estelle, 789 F.2d 318, 321 (5th Cir.1986) and Parker v. Carpenter, 978 F.2d 190, 191-192 and n. 2 (5th Cir.1992). Scheanette was provided with a copy of these records and allowed to file a response, which he did.

After review of the records, the Magistrate Judge issued a Report on December 22, 2005, recommending that Scheanette's claims be dismissed with prejudice as frivolous. Scheanette filed objections to this Report on January 3, 2006.

These objections relate primarily to Scheanette's complaints about the taking of the DNA sample. He complains that the Step Two grievance response is "false, " the physician's affidavit is false and should form the basis for prosecution, Texas law requires blood samples to be taken in a sanitary place, he had already given a DNA sample, the physician's theories have not been subjected to scientific scrutiny, he has made a "strong prima facie case" of discrimination, he has been denied the benefits of services and programs under the ADA, the Takings Clause requires compensation for the taking of property, he has a federal claim for assault as well as excessive use of force in the taking of the blood sample, and the sanitation procedures used were improper and violated his right to human dignity. None of these objections have any merit.

The Court has conducted a careful de novo review of the pleadings, papers on file in this cause, including the Report provided by the prison officials and Scheanette's response thereto, as well as the Report of the Magistrate Judge and the objections thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff's objections are without merit. It is accordingly

ORDERED that the Plaintiff's objections are overruled and the Report of the Magistrate Judge Is ADOPTED as the opinion of the District Court. It is further

ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice as frivolous. It is further

ORDERED that the Court hereby declines to exercise supplemental jurisdiction on any state law claims which Scheanette may have, and that the statute of limitations on any such claims is hereby TOLLED from the date the lawsuit was originally filed until thirty days after the final judgment dismissing the action is entered on the docket. 28 U.S.C. § 1367(d). Finally, it is

*2 ORDERED that any and all motions which may be pending in this action are hereby DENIED.

So ORDERED.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

McKEE, Magistrate J.

The Plaintiff Dale Scheanette, a Death Row inmate of the Texas Department of Criminal Justice, Institutional Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged denials of his constitutional rights. The lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

In his complaint, Scheanette says that on October 24, 2004, he was awakened and removed from his cell by two officers. Scheanette asked where they were going and was told that they were going to the "DNA lab." Scheanette asked if this was for the Texas Department of Public Safety and was told yes.

Scheanette states that he was taken to a section of the pod A recreation room were he was greeted by Nurse Riggins. He asked her who the test was for and she said Austin. Scheanette informed her that he already had given a sample for the "CODIS" database and so he did not have to give another one. Nurse Riggins said that he had to give another one or he would receive a disciplinary case, so he complied with the order.

Scheanette states that Nurse Riggins cleaned his arm, but did not clean the needle before she put it in his arm. She then told him to sign and thumb-print the chain of custody form, and he asked why. She replied that it was to prove that it was him and that he gave the sample. Scheanette asked what would happen if he refused and was again told that he would receive a major case. Scheanette then complied with this instruction. When he left, Nurse Riggins only gave him one small piece of tape and gauze for his arm. He then asked for her name, and she wrote it down for him, smiled, and said "I'm Nurse Riggins, everyone knows me."

When he got back to his cell, he saw that the guards took his neighbor out. He asked his neighbor where they had taken his blood sample, and the neighbor said that it was "the same place you went, " the recreation room. Another inmate told him that everyone's sample had been taken in the same place, commenting that "they treat us like animals."

As a result, Scheanette says, he began to worry about his blood sample having been taken in the open air. He says that he has a degree in "animal science" so he knew that he could get sick, and he could not go back to sleep. The next day, Scheanette says that he saw a rash on his arm where the sample had been taken, and he began to worry that he had contracted a staph infection. Scheanette filed a grievance against Nurse Riggins, but the warden delayed in responding, and Scheanette filed another one. The response to his grievance was that the nurse's actions were proper and that no further action was warranted. He then filed a step two, but says that "his concerns were not addressed."

*3 Scheanette then detours into a complaint about the grievance procedures, saying that he filed his Step Two grievance with the Step One attached, according to the rules, but it came back with the same response he had received on the Step One, and a notice that his Step One grievance had never been received. However, the Step One he had submitted was still attached to the Step Two form. Scheanette then reiterates that he wanted to refuse, because the taking of his blood under those conditions was a violation of the health code as well as his constitutional rights, but he could not.

Scheanette acknowledges that TDCJ-CID Director Douglas Dretke was not personally involved in his claims, but says that Attorney General Greg Abbott and his staff are committing mail fraud and wire fraud by arguing that there is no retaliation against inmates when in fact there is. He says that the failure to implement a "valid grievance procedure" has caused him harm because it causes the prison to "not take the courts seriously."

Scheanette provides a litany of rights which he says were violated by Nurse Riggins, including the right to be free from unreasonable search and seizure and violations of due process, freedom of speech, the right not to speak, the right to be free from cruel and unusual punishment, the right to be free from self-incrimination, conspiracy, and the state law claims of intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, violation of federal wiretap statutes, and false imprisonment (in the recreation room). Scheanette also claims that as a Death Row inmate, he falls under the purview of the Americans with Disabilities Act because he is socially dysfunctional and non-rehabilitatable.

Scheanette asserts that he has been the victim of discrimination under the ADA because the prison does not provide adequate health precautions, as shown by the procedures for taking DNA samples. He also says that there is no policy to prevent the taking of samples more than once from the same inmates and that inmates on Death Row are denied access to an impartial grievance adjudicator.

Next, Scheanette claims that the Director of TDCJ-CID and all of the members of his staff are involved in a criminal enterprise under the Racketeer Influenced and Corrupt Organizations (RICO) Act. He says that there is a "policy of discrimination" against inmates on Death Row, including the denial of access to television, the taking of blood samples in the dayroom, no spoons or cups are given to Death Row inmates, other inmates have been gassed while hanging themselves, inmates are not provided with any kind of educational programs, inmates are strip searched regardless of the weather, inmates are housed in segregation for 22½ hours per day, strip searches are conducted every time inmates leave their cells, the medicine of an inmate Dione Summerlin was confiscated even though Summerlin had previously attempted suicide, Death Row inmates are locked down twice a year for shakedowns, Death Row inmates are moved from cell to cell yearly while inmates in general population stay in the same cell throughout their incarceration, Death Row inmates are not permitted to go to the law library, information about Death Row inmates is placed on the Internet, the Death Row inmates get clothes that say "D.R." on them, they are not allowed to practice their religion with other inmates of the same faith but must do it by themselves or with a minister at the cell, they are not allowed any inmate to inmate contact, and they receive different I.D. numbers beginning with 999.

The Martinez Report

*4 The prison officials have been ordered to provide copies of prison records relevant to Scheanette's claims, pursuant to Cay v. Estelle, 789 F.2d 318 (5th Cir.1986) and Parker v. Carpenter, 978 F.2d 190, 191-92 n. 2 (5th Cir.1992).1 Scheanette was provided with a copy of the Report and was allowed to file a response, which he did.

1 This is known as a Martinez Report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) ( cited with approval in Cay and Parker ).

The Martinez Report observes that all 50 states and the federal government have enacted laws providing for the collection of DNA samples upon a showing that the inmate has been convicted of a predicate offense. Because Scheanette was convicted of capital murder, he falls within the Texas statute requiring DNA samples. The prison officials state that Scheanette had not previously given such a sample and was therefore properly required to do so.

The procedures for taking samples specify that the medical staff should collect the sample, a thumb-print obtained from the inmate, and a form completed, including the inmate's signature. This is done to ensure that the sample is from the correct inmate. TDCJ-CID regulations provide that inmates who refuse to give the sample may be subjected to disciplinary action.

In taking the sample, the prison records show, a needle is used only once and is contained in a sterile sealed wrapper until ready to be used. Consequently, it is not necessary to cleanse the needle with alcohol. Scheanette's medical records give no indication that he ever complained about a rash around the time of the taking of the sample, and an affidavit from Dr. Clarence Thomas, M.D., says that it is "highly unlikely" that Scheanette received a rash from the DNA blood draw because the injection is done with a sterilized needle, the skin is cleansed, and the injection site is a small contained area.

Dr. Thomas says that although Scheanette complains that his blood was drawn in the day room, which is unsanitary, in fact there is no added risk for airborne pathogens as opposed to any other common area where blood might be drawn. He noted that recreation areas are cleaned daily and that if the medical staff believes that the area is not clean enough, the area will be sanitized to an acceptable level or the procedure moved elsewhere.2

2 Scheanette's contention that he has "a degree in animal science, " which is how he says he knew that the procedure was not sanitary, is not borne out by the prison records.

The prison officials assert in the Martinez Report that inmates are provide with adequate health care, that food is not withheld from them, and that prison policy requires that Death Row inmates be strip searched and placed in restraints before exiting their cells. They note that these searches are done to ensure that no contraband has been brought into the facility which might present a threat to security, facilitate an escape, or be used in an assault on staff or inmates. The prison officials acknowledge that strip searches may take place when the weather is chilly, but say that these are performed as quickly as possible to minimize discomfort.

The prison officials also acknowledge that Death Row inmates do not get the same spoons as regular inmates, but get small disposable spoons rather than reusable plastic ones. This is done because the more rigid reusable spoons can be used as stabbing devices, but the small disposable ones can be used to eat with but cannot be made into weapons. They state that inmates who do not have cups receive a plastic or Styrofoam cups for use during meals, which are returned to the food service department afterwards; inmates may purchase such cups if the inmates are of the proper custody level. They agree that inmates on Death Row are not allowed access to television.

*5 Next, the prison officials say that Death Row inmates are kept in their cells for 22½ hours per day due to security concerns surrounding inmates convicted of capital murder. They state that there is a security risk with inmate-to-inmate contact and that the "work-capable" program for Death Row inmates is currently suspended. They state that Death Row inmates do get different identification numbers and distinctive clothing, so that they can be more easily identified.

With regard to the lockdowns, the officials state that the Polunsky Unit, including Death Row, is locked down twice a year, which allows all cells to be searched for contraband. Death Row inmates are considered high security risks and so they are moved around yearly. The Death Row inmates are not allowed physical access to the law library for security considerations. Finally, the prison officials state that Death Row inmates are not allowed contact with one another for religious services and that they receive cell-side ministerial visits and weekly spiritual visits.

The Response to the Martinez Report

In his response, Scheanette says that the prison officials presented no evidence that the needle was cleaned before use. He again says that he has "a degree in animal science" and states that he worked for Johnson & Johnson at the time of his arrest, doing U.P.S processing, and that he saw "human error all the time" in packaging.

Scheanette states that he gave a DNA sample in saliva when he was arrested by the Arlington police. He conceded that he had never given a blood sample.

Next, Scheanette states that he was not complaining about the conditions on Death Row per se, but that he was subjected to discrimination under the Americans with Disabilities Act and that he was being denied the benefits of services and programs to which he is entitled. He says that the prison officials clearly say that Death Row inmates "have problems interacting with others" and therefore are covered by the Americans with Disabilities Act. He reiterates his claim that the taking of his blood was done under unsanitary conditions and says that Dr. Thomas "is a liar and should be prosecuted." Scheanette again argues that the taking of his blood was a Fourth Amendment violation and says that Nurse Riggins did not clean the latex tie used on his arm.

Legal Standards and Analysis

Scheanette's primary complaint concerns the taking of his blood for a DNA sample, in conformity with Tex. Gov.Code Ann. At 411.148. The Fifth Circuit has held that the compelled collection of a DNA sample from a convicted felon does not violate the Fourth Amendment. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). Similarly, the Northern District of Texas has held that the collection of a DNA sample pursuant to the statute does not violate due process and does not amount to cruel and unusual punishment. Holliman v. Texas Department of Criminal Justice, slip op. no. 2:00-cv-0291 (N.D.Tex., Jan. 22, 2001) (unpublished). Scheanette's claims on these grounds are without merit.

*6 Scheanette's contentions that the taking of his sample violated his right of free speech and his "right not to speak" are without merit. Neither the giving of the sample, nor Scheanette's desire to protest the taking of the sample, are constitutionally protected speech, nor has Scheanette shown that he exercised his right of free speech in a manner consistent with his status as a prisoner. Freeman v. Texas Department of Criminal Justice, 369 F.3d 854, 864 (5th Cir.2004). This claim is without merit.

Similarly, Scheanette has not shown that his rights were violated through the manner of the taking of the sample, because he has not shown that he has suffered any harm thereby. See Memphis Community School District v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (for a Section 1983 claim to be viable, the plaintiff must allege an injury); accord, Jackson v. Culbertson, 984 F.2d 699 (5th Cir.1993) (some injury needed in use of force claim).

The giving of a DNA sample does not violate Scheanette's right to be free from self-incrimination because this privilege only applies when an accused is compelled to make a testimonial communication which is incriminating. United States v. Bengivenga, 845 F.2d 593, 600 (5th Cir.1988). The privilege does not apply to non-testimonial evidence such as blood samples. Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This claim is without merit.

Scheanette also alleges that he is the victim of a conspiracy. He says that this conspiracy is based on the fact that he is a Death Row inmate and that he is black.

The Fifth Circuit has stated that specific facts must be pled when a conspiracy is alleged; mere conclusory allegations will not suffice. Hale v. Harney, 786 F.2d 688, 690 (5th Cir.1986). In pleading these specific facts, the Plaintiff must allege the operative facts of the alleged conspiracy. Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir.1987). Scheanette has wholly failed to set out any specific facts showing that he has ben the victim of a conspiracy, but merely asserts that it is so.

To recover on a claim of a conspiracy, there must be an actual deprivation of a constitutional right; a mere conspiracy to deprive is insufficient. Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir.1984). In this case, Scheanette has not shown that he was actually deprived of any constitutional right. Furthermore, in order to prove a conspiracy in violation of the first clause of 42 U.S.C. 1985(3), a plaintiff must show that a conspiracy, based upon racial animus, existed between two or more persons for purpose of depriving a person or class of persons of the equal protection of the laws or of equal privileges and immunities under the law, and that an act was committed in furtherance of the conspiracy which injured a person or otherwise deprived a person of a right or privilege of a citizen of the United States. Deubert v. Gulf Fed. Savings Bank, 820 F.2d 754, 757 (5th Cir.1987); see also Kimble v. D.J. McDuff Inc., 648 F.2d 340 (5th Cir.1981). Scheanette has not shown that a racially-based conspiracy existed, much less that he suffered any injury as a result. His conspiracy claim is without merit.

*7 Scheanette raises a number of state law claims, apparently under the supplemental jurisdiction of the Court. These claims include intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, violation of federal wiretap statutes, and false imprisonment (in the recreation room).

The doctrine of supplemental jurisdiction (now known as supplemental jurisdiction) is codified in 28 U.S.C. § 1367, for all civil actions filed on or after December 1, 1990. See Public Law 101-650, Section 310(c); Whalen v. Carter, 954 F.2d 1087, 1097 n.10 (5th Cir.1992).

28 U.S.C. § 1367(a) reads as follows:

Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Subsection (b) refers to actions filed under diversity jurisdiction and thus is not applicable in this case. Subsection (c) reads as follows:

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-
(1) The claim raises a novel or complex issue of State law;
(2) the claim substantially predominates over the claim or claims over which the district court ...

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