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ROBERT ANTHONY WILLIAMS, Plaintiff, vs. JERRY
MANTERNACH, WILLIAM SOUPENE, STEVE HEBRON, and CHARLES OKOYE, Defendants.
No. C 01-0036-MWB
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA, CEDAR RAPIDS DIVISION
March 15, 2002, Decided
MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION
TABLE OF CONTENTS
I. INTRODUCTION
II. LEGAL ANALYSIS
A. Standard Of Review
B. Williams's Objections
C. Claims Arising From Disciplinary Reports
1. "Due process" claims
2. "Retaliation" and
"conspiracy" claims
a. Construction of the Complaint
b. Analysis of "retaliation" and
"conspiracy" claims
D. Claims Arising From "Lifer"
Status
1. Construction of the claims
2. Sufficiency of the "equal
protection" claims
E. Appointment Of Counsel
III. CONCLUSION
This action pursuant to 42 U.S.C. § 1983 by
plaintiff Robert Anthony Williams, an inmate of the Anamosa State Penitentiary,
comes before the court on the December 27, 2001, Report and Recommendation of
Magistrate Judge Paul A. Zoss on the defendants' April 20, 2001, motion to
dismiss. Judge Zoss recommended dismissal of this action in its entirety for
failure to state a claim upon which relief can be granted. After an extension
of time to do so, plaintiff Williams filed objections to the Report and
Recommendation on January 22, 2002.
I. INTRODUCTION
Williams,
who is serving a life term at the Anamosa State Penitentiary, filed his [*983]
pro se Complaint in this action on March 12, 2001, alleging various claims
arising from two prison disciplinary reports concerning misuse of computers.
The first disciplinary report followed the discovery on February 25, 1999, of
purportedly unauthorized files on a floppy disk in a computer Williams used in
his prison job. The second disciplinary report followed an incident on October
7, 2000, when Williams purportedly printed legal work for another inmate on the
computer at Williams's work station in the prison hobby center. Williams
alleges that those disciplinary reports resulted in disciplinary detention,
loss of his "level V status," and loss of his prison job, although
Williams contends that, had proper procedures been followed, neither incident
would even have resulted in a disciplinary report or finding of a rules
violation.
In an Initial Review Order, Judge Zoss
characterized Williams's Complaint as challenging only "the legality of
his disciplinary report conviction regarding
an incident that took place on February 25, 1999," and seeking
"compensatory and punitive damages, restoration of Level 5 status, and
return to his prison job." March 22, 2001, Initial Review Order at 1-2.
However, in his Report and Recommendation on the defendants' motion to dismiss,
Judge Zoss characterized Williams's Complaint as asserting the following
claims:
Williams argues the defendants' failure to
inform him that he was under investigation, and that a disciplinary report was
being considered, violated prison disciplinary procedures and policies, and
thus, violated his due process rights. Further, Williams alleges the defendants
conspired to evade investigatory procedures for the purpose of violating his
rights and covering up improper procedures by a new correctional officer.
Lastly, Williams contends the actions of the
defendants in establishing and implementing "policies and procedures that
assure only so many lifers are on all employment cites [sic] as well as
quota(s) in the levels one can earn" violate his right, as a lifer, to
"equal protection and equal privileges in connection with quotas in
employment and movement through the level system."
December 27, 2001, Report and Recommendation
at 5. Although there is some uncertainty about what claims Williams is
asserting, the relief he seeks is specifically stated in his Complaint to
consist of compensatory and punitive damages, restoration of his level status,
and reinstatement in one or the other of his prison jobs. See Complaint at VI.
On April 20, 2001, the defendants moved to
dismiss Williams's Complaint for failure to state a claim upon which relief can
be granted. More specifically, the defendants' motion and supporting brief
asserted the untimeliness of claims based on events in February and March of
1999; the applicability of the requirement, from Heck v. Humphrey, 512 U.S.
477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), that Williams secure the
invalidation of the prison discipline before he asserts a § 1983 claim, which
Williams had not done; and Williams's failure to allege a protected liberty
interest under Sandin v. Conner , 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct.
2293 (1995). The defendants did not address any equal protection claim in their
motion to dismiss, instead moving to dismiss only the due process claim
identified in the Initial Review Order.
In response to the defendants' motion to
dismiss, Judge Zoss recommended that Williams's Complaint be dismissed in its
entirety for failure to state a claim on which relief can be granted. Judge
Zoss concluded that Williams had not pleaded any protected liberty interest, to
which due process could attach, because, under the standard established in
Sandin v. Conner, [*984] 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293
(1995), Williams had not suffered any deprivation that was "atypical and
significant," in the context of his life sentence, in his disciplinary
detention, the loss of his level status, or the loss of his prison job. Judge
Zoss concluded further that Williams could not state a due process claim based
solely on the alleged failure of prison officials to follow state mandated
procedures for investigating and processing the disciplinary charges, because
due process protection does not extend to the procedures themselves, but only
to the nature of Williams's confinement. Despite the absence of any challenge
on the part of the defendants to Williams's equal protection claim, Judge Zoss
also concluded that Williams had failed to state an equal protection claim,
because he had alleged neither factual support establishing that he is
"similarly situated" to any other
inmate who received more favorable treatment, nor facts evidencing
intentional or purposeful discrimination for the alleged less favorable
treatment.
As noted above, Williams filed lengthy
objections to Judge Zoss's Report and Recommendation, which the court must now
consider in its review of Judge Zoss's recommended disposition of this action.
II. LEGAL ANALYSIS
A. Standard Of Review
The standard of review to be applied by the
district court to a report and recommendation of a magistrate judge is
established by statute:
A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate [judge].
28 U.S.C. § 636(b)(1). The Eighth Circuit
Court of Appeals has repeatedly held that it is reversible error for the
district court to fail to conduct a de novo review of a magistrate judge's
report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298,
306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860, 136
L. Ed. 2d 107, 117 S. Ct. 164 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th
Cir. 1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)); Hudson
v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). However, the
plain language of the statute governing review provides only for de novo review
of "those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(1).
Therefore, portions of the proposed findings or recommendations to which no
objections are filed are reviewed only for "plain error." See
Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (reviewing factual
findings for "plain error" where no objections to the magistrate
judge's report were filed).
B. Williams's Objections
The court finds that the objections Williams
has filed in this matter are sufficient to invoke de novo review of Judge
Zoss's Report and Recommendation. In his objections, Williams contends that, in
general, Judge Zoss has misapprehended his claims or has ignored portions of
his claims. More specifically, at least as this court understands Williams's
objections, he contends that Judge Zoss did not address his claim of
retaliation for assisting inmates with legal matters in relation to the two misconduct
reports; did not consider, misapprehended, and did not require the defendants
to respond to, his claims of conspiracy and invidious discrimination against
"lifers," including his equal protection attack on the "quota
system"; misapprehended [*985] his claims pertaining to the two misconduct
reports, which are actually claims of a conspiracy to deny him "due
process in place for disciplinary reports," retaliation for being a
jailhouse lawyer, with sanctions for his alleged misconduct selected accordingly,
and "orchestration" of the conspiracy by defendant Soupene by turning
over the matter to another ALJ to "safeguard against the appearance of
impropriety"; and failed to examine the procedural deviations in the
second misconduct report arising from a conspiracy among the defendants. See
Plaintiff's Objections to Report and Recommendation of Magistrate at 1-2.
This court finds that Judge Zoss considered
only two claims: (1) a claim of violation of due process arising from the two
disciplinary reports; and (2) a claim of violation of equal protection as to
"lifers" at the Anamosa State Penitentiary in application of a
"quota system" for "lifers" in "levels one can
earn" and jobs "lifers" can occupy. Upon de novo review,
however, this court concludes that these were only two of several claims
Williams was apparently attempting to assert.
C. Claims Arising From Disciplinary Reports
1. "Due process" claims
Plainly,
Williams did assert a claim of violation of due process arising from the two
disciplinary reports, including two alternatives specifically analyzed by Judge
Zoss: (a) a claim that the disciplinary reports and sanctions impinged upon
Williams's protected liberty interest, because they resulted in disciplinary
detention, loss of "level status," and loss of his prison job, i.e. ,
a claim based on "results," and (b) a claim that Williams had a
liberty interest that was violated by the prison officials' failure to follow
regular prison procedures and policies for imposition of disciplinary sanctions,
i.e., a claim based on "procedural irregularities." For essentially
the reasons stated by Judge Zoss, the court concludes that neither of these
"due process" claims is viable.
First,
the "results" alternative of the "due process" claim is not
viable under Sandin v. Conner, 515 U.S. 472, 484-85, 132 L. Ed. 2d 418, 115 S.
Ct. 2293 (1995). As Judge Zoss correctly explained, neither Williams's
placement in disciplinary detention for 30 days, nor his loss of level status,
nor his loss of his prison job resulted in the imposition of punishment that
constituted "a dramatic departure from the basic conditions" of his
prison confinement, fell outside "the expected parameters of the sentence
imposed by a court of law," or otherwise constituted "the type of
atypical, significant deprivation in which a state might conceivably create a
liberty interest." See Report and Recommendation at 10-11. Second, upon de
novo review of the "irregular procedures" alternative of Williams's
due process claim, this court agrees with Judge Zoss that, to the extent that
Williams is attempting to assert a constitutional liberty interest in having
state officers following state law--that is, prison regulations concerning
procedures for investigation, determination, and punishment of prison rules
violations--Williams has misinterpreted the nature of procedural due process.
As Judge Zoss concluded, "If Williams has a liberty interest at all, 'it
is an interest in the nature of his confinement, not an interest in the
procedures by which the state believes it can best determine how he should be
confined.'" Id. at 11 (citing, inter alia, Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996)).
Thus, the court will accept these portions of Judge Zoss's Report and
Recommendation and dismiss Williams's "due process" claims founded on
either a "results" or "procedural irregularities" theory.
[*986]
2. "Retaliation" and "conspiracy" claims
a. Construction of the Complaint
However,
the court agrees with Williams that Judge Zoss did not consider "conspiracy" and
"retaliation" claims with regard to the prison disciplinary reports,
even though such claims, or the factual bases for such claims, were pleaded in
Williams's Complaint. The court recognizes that such an oversight might be
partially or substantially attributable to the inartful pleading of Williams's
claims in his pro se Complaint. However, when giving a pro se complaint the
liberal construction to which it is entitled, the question is whether factual
allegations support a legal theory, not whether the legal theory is
specifically articulated. See, e.g.,
Bracken v. Dormire, 247 F.3d 699, 702-03 (8th Cir.) (noting that
"it is our longstanding practice to construe pro se pleadings liberally,"
but distinguishing between a pro se complaint that "inartfully raised
factual issues that implicated legal propositions that [the pleader] could not
reasonably be held responsible for articulating," and failure to plead
either the law or facts in support of a claim), cert. denied, U.S.
, 122 S. Ct. 302, 151 L. Ed. 2d 224 (2001); Williams v. Willets, 853
F.2d 586, 588 (8th Cir. 1988) ("We recognize that a prisoner's pro se
civil rights complaint is to be liberally construed. Moreover, the district
court is under a duty to examine the complaint to determine if the allegations
provide for relief on any possible theory.") (citations omitted).
To the extent that Judge Zoss recognized that
Williams was asserting a "conspiracy" claim, he did not analyze it
separately. Moreover, to the extent that Judge Zoss read Williams's
"conspiracy" claim as a claim of a conspiracy "to evade
investigatory procedures for the purpose of violating [Williams's] rights and
covering up improper procedures by a new correctional officer," see Report
and Recommendation at 5, this court must agree that such a reading is a
plausible rendering of Williams's "conspiracy" claim. See, e.g.,
Complaint at V(17) & (20). However--perhaps with hindsight informed by
rereading Williams's pro se Complaint and his resistance to the defendants'
motion to dismiss in light of his objections to the Report and
Recommendation--the court believes that Williams was nevertheless also
attempting to assert a claim that the defendants both retaliated and conspired
to retaliate against him for engaging in jailhouse lawyering by subjecting him
to irregular procedures and sanctions for prison rules violations.
The court acknowledges that no reference to
"retaliation" appears in the pro se. Complaint, and that neither
Judge Zoss, in his Report and Recommendation, nor the defendants, in their
motion to dismiss, considered such a claim. However, "retaliation"
figures prominently as the characterization of some of Williams's claims in his
Objections and is raised, albeit somewhat vaguely, in his resistance to the
motion to dismiss. What does appear in Williams's Complaint, after a recitation
of alleged errors and irregularities in investigation, disposition, and
punishment of the February 1999 rules violation, is an allegation that the
actions of defendant Soupene with regard to that rules violation and its
subsequent disposition by another prison official, ALJ Noonan, "were part
and parcel of the initial conspiracy," that "ALJ Soupen's [sic]
actions were vindictive, arbitrary, and represent this institution's unspoken
but clear class based invidious discriminatory animus against state convicts .
. . who importunistically attempt to help other inmates with their legal
problems." See Complaint at V(1)-(11)(D) (with quotations above drawn from
(11) (B) & (C)). The court reads these allegations to be tantamount to an
allegation that the conduct of [*987] the defendants identified in this portion
of the Complaint, and specifically defendant Soupene's actions, were "in
retaliation" for Williams's status as a jailhouse lawyer. Similarly,
reading the subsequent allegations of impropriety and conspiracy as to the
second disciplinary report, in October of 2000, in light of the allegation of
animus towards jailhouse lawyers, the
court also reads the Complaint as attempting to state a claim of retaliation
and conspiracy to retaliate towards a jailhouse lawyer in the processing and
punishment of the second disciplinary report. To put it another way, even
though the Complaint does not use the appropriate term of art for a
"retaliation" claim, it alleges both "factual issues that
implicated [that] legal proposition[]," see Bracken, 247 F.3d at 702-03, and provides sufficient factual
"allegations [to] provide for relief on [a retaliation] theory."
See Williams, 853 F.2d at 588.
b. Analysis of "retaliation" and
"conspiracy" claims
Judge
Zoss's recommendation of dismissal on the ground that Williams has failed to
state due process claims arising from his two disciplinary reports is not
sufficient to dispose of Williams's "retaliation" and
"conspiracy to retaliate" claims. It is not enough to dispose of a
"retaliation" claim--in this case, a claim of retaliation for
jailhouse lawyering activities--that there was no underlying due process or
other constitutional violation. The Eighth Circuit Court of Appeals has
"long recognized an inmate's cause of action for retaliatory discipline
under 42 U.S.C. § 1983 where a prison official files disciplinary charges in
retaliation for the inmate's exercise of his constitutional rights." Moore v. Plaster, 266 F.3d
928, 931 (8th Cir. 2001) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th
Cir. 1989)), petition for cert. filed, (Feb. 11, 2002) (No. 01-8588). Moreover,
"the alleged manifestations of defendants' retaliation (such as less favorable
treatment) need not themselves amount to constitutional violations [because]
the violation lies in the intent to impede" the inmate's constitutional
rights. Madewell v. Roberts, 909 F.2d 1203, 1206-07 (8th Cir. 1990); accord Cody v. Weber, 256 F.3d 764, 771 (8th Cir.
2001) ("Conduct that retaliates against the exercise of a constitutionally
protected right is actionable, even if the conduct would have been proper if
motivated by a different reason.") (citing Madewell). It necessarily follows
that a claim of "conspiracy to retaliate" also need not be based on
an underlying constitutional violation, because it is the agreement to impede
the inmate's constitutional rights that is the "violation" supporting
such a claim.
Although a retaliation claim is not dependent
upon sufficient pleading or proof of an underlying constitutional violation--in
this case, sufficient pleading or proof of a due process violation--as the
Eighth Circuit Court of Appeals has explained,
Claims of retaliation fail if the alleged
retaliatory conduct violations were issued for the actual violation of a prison
rule. Henderson v. Baird, 29 F.3d 464,
469 (8th Cir. 1994), cert. denied, 515 U.S. 1145, 115 S. Ct. 2584, 132 L. Ed.
2d 833 (1995). Thus, a defendant may successfully defend a
retaliatory-discipline claim by showing "some evidence" that the
inmate actually committed a rule violation.
Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert. denied, 512 U.S.
1209, 114 S. Ct. 2684, 129 L. Ed. 2d 817 (1994); see also Superintendent v.
Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).
Moore, 266 F.3d at 931; Cowans v. Warren, 150
F.3d 910, 912 (8th Cir. 1998) (where a prisoner alleges that disciplinary
action taken against him for conduct unrelated to his grievance was nonetheless
taken [*988] in retaliation for filing the grievance, the prisoner "may
not state a claim of retaliation where the 'discipline [was] imparted for acts
that a prisoner was not entitled to
perform'") (quoting Orebaugh v. Caspari, 910 F.2d 526, 528 (8th
Cir. 1990) (per curiam)). In short, "where an inmate has violated an
actual prison rule, no retaliation claim can be stated." Cowans, 150 F.3d
at 912. Moreover, to state a claim of "conspiracy" to violate inmate
rights, an inmate must "allege facts suggesting a mutual understanding or
meeting of the minds." Cooper v. Delo, 997 F.2d 376, 377 (8th Cir. 1993);
Snelling v. Westhoff, 972 F.2d 199, 200 (8th Cir. 1992) (per curiam) (to state
a conspiracy claim under § 1983, an inmate must assert "specific facts
showing '[a] meeting of [the] minds' among alleged conspirators") (quoting
Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988)), cert. denied, 506
U.S. 1053 (1993).
This matter is presently before the court on
the defendant's pre-answer motion to dismiss. Consequently, the court cannot
determine from the pleadings alone whether there has been an actual prison rule
violation, or whether there is "some evidence" of such a violation,
to defeat Williams's "retaliation" claim. See Moore, 266 F.3d at 931; Cowans, 150 F.3d at
912. The issue on a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure is not whether a
plaintiff will ultimately prevail, but whether the plaintiff is entitled to
offer evidence in support of his or her claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct.
1683 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376
(8th Cir. 1989). Although a motion for summary judgment might quickly resolve
whether or not there is "some evidence" of a rule violation on each
occasion Williams alleges that he was subjected to retaliatory disciplinary
action, which would torpedo Williams's retaliation claims, at this stage of the
proceedings, the court must give Williams's claims a liberal construction, and
assume his factual allegations are true. See
Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99
(1957); Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999) ("On a motion to
dismiss, we review the district court's decision de novo, accepting all the
factual allegations of the complaint as true and construing them in the light
most favorable to [the non-movant]."). Moreover, the court finds that Williams has sufficiently pleaded
facts indicating a "meeting of the minds" among the conspirators by
alleging their awareness of his jailhouse lawyering activities and cooperation
to impose disciplinary sanctions upon him because of those activities.
See Cooper, 997 F.2d at 377; Snelling,
972 F.2d at 200. Thus, it is not "clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations'" of retaliation and conspiracy to retaliate for Williams's
jailhouse lawyering, which makes it inappropriate for the court to dismiss
these portions of Williams's Complaint for failure to state a claim upon which
relief can be granted. Handeen v.
Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997) (quoting Hishon v. King &
Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984));
accord Conley, 355 U.S. at 45-46
("A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support
of his [or her] claim which would entitle him [or her] to relief.").
Therefore, the court will modify the Report and Recommendation to permit this
matter to proceed on claims of "retaliation" and "conspiracy to
retaliate" for jailhouse lawyering premised on the two disciplinary [*989]
reports. n1
D. Claims Arising From "Lifer"
Status
As mentioned above, Judge Zoss also concluded
that Williams had failed to state an equal protection claim, because he had
alleged neither factual support establishing that he is "similarly
situated" to any other inmate who received more favorable treatment, nor
facts evidencing intentional or purposeful discrimination for the alleged less
favorable treatment. This portion of Judge Zoss's Report and Recommendation,
however, cannot be accepted. First, it is not clear to the court, where, if at
all, the defendants moved to dismiss Williams's equal protection claims based
on disparate treatment of "lifers." Rather, the defendants' motion
and brief refer only to the untimeliness of claims based on events in February
and March of 1999; the applicability of the requirement, from Heck v. Humphrey,
512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), that Williams secure
the invalidation of the prison discipline before he asserts a § 1983 claim; and
Williams's purported failure to allege a protected liberty interest under
Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).
Thus, the court is not convinced, upon de novo review, that the defendants ever
properly put the adequacy of Williams's pleading of his equal protection claim
before the court or that Judge Zoss properly reached the issue in the absence
of assertion by the defendants. n2 Moreover, upon de novo review--again giving
Williams's pro se Complaint the liberal construction to which it is entitled,
see Bracken, 247 F.3d at 702-03;
Williams, 853 F.2d at 588, and reading his Complaint with the benefit of
hindsight refocused by Williams's Objections to the Report and
Recommendation--the court finds that Williams has pleaded equal protection
violations based [*990] on his treatment as a "lifer" sufficiently to
state a claim upon which relief can be granted.
1. Construction of the claims
First, as with Williams's claims arising from
the disciplinary reports, the court finds that some construction of Williams's
Complaint is required to determine what claims arising from his status as a
"lifer" Williams was attempting to state. In his allegations of
misconduct concerning the first disciplinary report, Williams alleges that
"ALJ Soupen's [sic] actions were vindictive, arbitrary, and represent this
institution's unspoken but clear class based invidious discriminatory animus
against state convicts who happen to be lifers. . . ." Complaint at V, P
11(C). Williams also alleges that, "because of lifer status," the
sanctions imposed following the second disciplinary report at issue here,
resulted in his "having to wait one year to become eligible for level 5
replacement, and until a lifer [who] already is in level 5 either dies or is
removed for misconduct before a cell is available when my name comes up on the
list." Id. at P 26. Furthermore, Williams alleges, "Mr. Steve Hebron
and Mr. Jerry Manternach are also named in connection with a second claim of
intentional deprivation of equal protection and equal privileges in connection
with quota(s) in employment and movement through the level system." Id. at
P 27. He alleges further that "these defendants [Hebron and Manternach]
author and/or oversee policies and procedures that assure only so many lifers
are on all employment cites [sic] as well as quota(s) in the levels one can
earn"; that "there is a class based invidiously discriminatory animus
behind these defendants, who have conspired and continue to conspire to assure
state convicts that happen to be lifers suffer as a result of same"; that
he "is now victimized because of it"; and that defendant Soupene
"in his sanctions imposed upon plaintiff is a part of that
conspiracy." Id. at PP 27-31. The court reads these allegations as an
attempt to assert claims of violation of, and conspiracy to violate, equal
protection rights in the disparate treatment of "lifers" as to jobs
and level advancement, and more specifically, claims of violation of, and
conspiracy to violate, Williams's own equal protection rights by reclassifying
him as a punishment for groundless disciplinary violations so that he would be
barred from prompt reinstatement to either his job or his level status by the
quotas on "lifers."
2. Sufficiency of the "equal
protection" claims
Upon de novo review, the court accepts Judge
Zoss's articulation of the legal standards applicable to an equal protection
claim and his conclusion that Mr. Williams's equal protection claims warrant
only "rational basis" review. See Report and Recommendation at 12-15.
The court disagrees, however, with Judge
Zoss's conclusions that Williams has failed to meet either of the
necessary predicates to state a cognizable claim under the Equal Protection
Clause, which are that he suffered treatment different from other prisoners in
his circumstances and that such unequal treatment was the result of intentional
or purposeful discrimination. Id. at 15; see also Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir.
1994) (first predicate), cert. denied, 513 U.S. 1185, 130 L. Ed. 2d 1130, 115
S. Ct. 1177 (1995); McClesky v. Kemp, 481 U.S. 279, 292, 95 L. Ed. 2d 262, 107
S. Ct. 1756 (1987) (second predicate). Contrary to Judge Zoss's conclusion that
Williams has failed to allege factual support establishing that he is
"similarly situated" to any other inmate who received more favorable
treatment, the court finds that it is plainly implicit in Williams's pleadings,
identified above, that prisoners who are not "lifers" are not
subjected to [*991] quotas on how many of them can be on any employment site or
the "levels" that they can earn, i.e., that apart from
"lifer" status, they are similarly situated, but enjoy different
treatment in the absence of quotas on job assignments and levels that they can
earn. At the pleading stage, the court does not believe that Williams was
required to identify by name any non-"lifers" who were not subjected
to such quotas.
Similarly, the court disagrees with Judge
Zoss's conclusion that Williams has not pleaded facts evidencing intentional or
purposeful discrimination for the alleged less favorable treatment. First,
discriminatory animus would seem to be the sort of "malice, intent,
knowledge, and other condition of mind of a person" that, under the federal
pleading rules, "may be averred generally." See Fed. R. Civ. P. 9(b);
but see Judge v. City of Lowell, 160
F.3d 67, 72 (1st Cir. 1998) (to state a race discrimination claim under the
equal protection clause, the plaintiff
must allege not only that the defendants were aware of his or her race, but
that they acted because of his or her race, requiring, at a minimum, that the
plaintiff "allege particulars sufficient to sanction a factfinder in
drawing a reasonable inference of intentional disparate treatment," which
means that "the element of illegal motive must be pleaded by alleging
specific non-conclusory facts from which such a motive may reasonably be
inferred, not merely by generalized asseveration alone," and reaffirming
this standard notwithstanding Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163 (1993), and Crawford-El v.
Britton, 523 U.S. 574, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998)); Yusuf v.
Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (holding that, in support of an
"equal protection" claim based on race, "naked" assertions
of racial motivation will not suffice; rather, the complaint "must
specifically allege the events claimed to constitute intentional discrimination
as well as circumstances giving rise to a plausible inference of racially
discriminatory intent"); and compare
Swierkiewicz v. Sorema, N.A., 2002 U.S. Lexis 1374 U.S.
, 122 S. Ct. 992 , 2002 WL 261807 (Feb. 26, 2002) (an
employment discrimination plaintiff is not required to plead facts establishing
a prima facie case of discrimination, but is instead subject only to Rule 8(a)
pleading requirements to put the defendant on notice of the claim). Williams's
Complaint is replete with general allegations of invidious, discriminatory
animus, based on his status as a "lifer." In addition to such
admittedly conclusory allegations of discriminatory intent, however, Williams
pleads sufficient facts from which discriminatory intent can be inferred:
Williams also pleads that the defendants knew of his status as a
"lifer," were aware of or responsible for establishing the quotas on
jobs and level status for "lifers," knew the disparate impact of the
quotas on "lifers" generally and on Williams in particular, and acted
to impose the effects of the quotas upon Williams and other "lifers"
precisely because of those effects. See, e.g., Personnel Adm'r v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) (discriminatory
purpose means that the decision-maker must have selected a particular course of
action because of, rather than in spite of, its adverse effect upon an
identifiable group). Again, the court finds that Williams has also adequately
pleaded a "meeting of the minds," as required to sustain a civil rights
"conspiracy" claim, by alleging the defendants' awareness of his
"lifer" status, the job and level quotas on "lifers," and
the effect of depriving him of his level status, as well as cooperation to
impose disciplinary sanctions upon him to impose the effects of the
discriminatory quotas upon him. See
Cooper, 997 F.2d at 377; Snelling, 972 F.2d at 200.
[*992]
Although there may be no difficulty on the
part of the defendants in showing that the purported disparate treatment of
"lifers" has a rational basis, that issue is more properly addressed
following the defendants' answer or upon a motion for summary judgment. For
now, it is not "clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations'" of violation
of Williams's equal protection rights or conspiracy to violate such rights,
based on his "lifer" status, which makes it inappropriate for the
court to dismiss these portions of Williams's Complaint for failure to state a
claim upon which relief can be granted. Handeen v. Lemaire, 112 F.3d 1339, 1347
(8th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L.
Ed. 2d 59, 104 S. Ct. 2229 (1984)); accord Conley, 355 U.S. at 45-46 ("A
complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
his [or her] claim which would entitle him [or her] to relief.").
Therefore, the court will modify the Report and Recommendation to permit this
matter to proceed upon claims of violation of Williams's equal protection
rights or conspiracy to violate such rights, based on his "lifer"
status.
E. Appointment Of Counsel
In light of the apparent uncertainty about
what claims Williams is attempting to assert in his pro se complaint, the court
deems it appropriate to consider sua sponte whether counsel should be appointed
to assist Williams with this litigation. Whether or not the court should
appoint counsel in a prisoner's civil rights case is a matter in the court's
discretion. See Davis v. Scott, 94
F.3d 444, 447 (8th Cir. 1996). As the Eighth Circuit Court of Appeals has
explained,
"Indigent civil litigants do not have a
constitutional or statutory right to appointed counsel." Edgington v.
Missouri Dep't of Corrections, 52 F.3d 777, 780 (8th Cir. 1995). The trial
court has broad discretion to decide whether both the plaintiff and the court
will benefit from the appointment of counsel, taking into account the factual
and legal complexity of the case, the presence or absence of conflicting
testimony, and the plaintiff's ability to investigate the facts and present his
claim. Swope [v. Cameron], 73 F.3d 850,
852 [(8th Cir. 1996)]; In re Lane, 801 F.2d 1040, 1043-44 (8th Cir. 1986).
Davis, 94 F.3d at 447. Here, both Williams
and the court--and, indeed, the defendants--will benefit from the appointment
of counsel, in light of the evident confusion about the nature and legal basis
for Williams's claims. Once the claims have been clarified by an amended
pleading filed by counsel, in accordance with the court's determinations above,
the defendants will have a clearer understanding of whether they should respond
by answering Williams's claims or by
filing another pre-answer motion to dismiss.
III. CONCLUSION
Judge Zoss's December 27, 2001, Report and
Recommendation on the defendants' April 20, 2001, motion to dismiss is accepted
in part, rejected in part, and modified in part, as follows:
1. The Report and Recommendation is accepted
as to the recommendation of dismissal of Williams's "due process"
claims founded on either a "results" or "procedural
irregularities" theory, and the defendants' motion to dismiss is granted
as to those claims.
2. That portion of the Report and
Recommendation recommending dismissal of Williams's "equal
protection" claim is rejected. To the extent that the defendants sought
dismissal of such a claim, the defendants' motion to dismiss is denied.
[*993]
3. The Report and Recommendation is modified
to the extent that, upon de novo review, the court concludes that this matter
shall proceed upon the following claims: (a) claims of "retaliation"
and "conspiracy to retaliate" for jailhouse lawyering premised on the
two disciplinary reports; and
(b) claims of violation of Williams's equal
protection rights or conspiracy to violate such rights, based on his
"lifer" status.
4. The Clerk of Court shall appoint counsel
to represent plaintiff Williams in this matter. On or before April 12, 2002,
counsel shall confer with Mr. Williams and file a First Amended Complaint
asserting claims consistent with this ruling.
5. Defendants shall have to and including
June 3, 2002, within which to move or plead in response to the Amended
Complaint.
IT IS SO ORDERED.
DATED this 15th day of March, 2002.
Mark W. Bennett
Chief Judge US. District Court
FOOTNOTES:
n1 The court believes that characterization
of portions of Williams's claims arising from the two disciplinary reports as
"retaliation" and "conspiracy to retaliate" for jailhouse lawyering encompasses the claims
identified in Williams's objections as retaliation for assisting inmates with
legal matters in relation to the two misconduct reports; conspiracy to deny him
"due process in place for disciplinary reports"; retaliation for
being a jailhouse lawyer, with sanctions for his alleged misconduct selected
accordingly; "orchestration" of the conspiracy by defendant Soupene
by turning over the matter to another ALJ to "safeguard against the
appearance of impropriety"; and procedural deviations in the second
misconduct report arising from a conspiracy among the defendants. Although the
defendants leveled statute of limitations challenges to Williams's claims
arising from the first disciplinary incident, the court will not reach the
question of whether the "retaliation" and "conspiracy to
retaliate" claims arising from that incident are time-barred until such
time as the "retaliation" and "conspiracy to retaliate"
claims are recast in further pleadings by the plaintiff, as required by the
court below. The court will also leave open, for now, the question of whether
either a continuing violation theory or single conspiracy theory would
establish the timeliness of such claims. This course is appropriate, at least
in part, because it does not appear that the defendants understood Williams to
be asserting either a "retaliation" or a "conspiracy to
retaliate" claim, which makes it inappropriate for the court to
hypothesize too broadly about what challenges the defendants meant to address
to what claims.
n2 No equal protection claims are identified
in Judge Zoss's Initial Review Order, either, which characterized Williams's
Complaint as challenging only "the legality of his disciplinary report
conviction regarding an incident that took place on February 25, 1999,"
and seeking "compensatory and punitive damages, restoration of Level 5
status, and return to his prison job." March 22, 2001, Initial Review
Order at 1-2. Because the Initial Review Order did not address, then
specifically exclude, Williams's equal protection claims as claims to which the
defendants must respond, this court concludes that there has been no
determination that the equal protection claims were too frivolous to require an
answer. Instead, the Initial Review Order simply overlooked some of Williams's
claims.
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