Charles Whitfield v. David White, Warden, Richard Wimberly, Chief of Security

ARKANSAS SUPREME COURT

No. 05-222

NOT DESIGNATED FOR PUBLICATION

CHARLES WHITFIELD

Appellant

v.

DAVID WHITE, WARDEN, RICHARD WIMBERLY, CHIEF OF SECURITY

Appellees

Opinion Delivered January 19, 2006

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT, CV 2004-827-3, HON. WILLIAM BENTON, JUDGE

AFFIRMED

PER CURIAM

Charles Whitfield, an inmate in the Arkansas Department of Correction ("ADC"), filed this pro se civil rights action against David White and Richard Wimberly in their official capacities as, respectively, warden and chief of security for the Arkansas Department of Correction maximum security unit at Tucker, Arkansas. In response to the defendants' motion, the circuit court dismissed Whitfield's complaint with prejudice for failure to plead facts upon which relief could be granted under Ark. R. Civ. P. 12(b)(6). Whitfield now brings this appeal of that order.

Appellant Whitfield asserts violations of due process under 42 U.S.C. § 1983 (2000) occurred when he was placed in punitive isolation or "barracks arrest" before adjudication of disciplinary charges. Appellant also cites 42 U.S.C. § 1997a (2000) in his brief, which does not provide for a private right of action. The Prison Litigation and Reform Act ("PLRA") does reference civil action by prisoners in 42 U.S.C. § 1997e (2000), as those suits may be brought under 42 U.S.C. § 1983 (2000), but does not expand the available actions, and, in fact, places some limitations on those actions. The appellees contend the circuit court's order dismissing the complaint should be affirmed because appellant did not provide proof that he exhausted his administrative remedies, as required by § 1997e(a).

A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). Because the order dismissed the claims with prejudice, we must assume the circuit court treated the motion as one for summary judgment. Summary judgment is granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id. at 1003, 69 S.W.3d at 418. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 1004, 69 S.W.3d at 418.

Were appellant required to provide proof with his complaint that he had exhausted his administrative remedies as required by § 1997e(a), he clearly did not do so. While the circuits are split on this issue, he is not required to do so in the Eighth Circuit. The PLRA's exhaustion requirement is an affirmative defense within our Eighth Circuit. Nerness v. Johnson, 401 F.3d 874 (8th Cir. 2005). Therefore, had appellant filed this action in federal court, or had the defendants sought to remove to federal court, the defendants would have carried the burden of proof on the issue, and we find no cause to hold otherwise where, as here, appellant chooses to bring suit in state court.

We do require that facts be pled to support a plaintiff's claims. Ark. R. Civ. P. 8(a)(1). Here, appellant included in his complaint an allegation that he pursued grievances, although he did not attach those grievances as an exhibit. Appellant moved to amend his complaint to include some copies of grievances, but that motion was denied by the circuit court. While the appellees assert the grievances filed were not adequate, we are not able to say from the record considered by the trial court that the defendants met their burden on this point. Further, dismissal for failure to state a claim should be without prejudice. However, because we determine as set forth below that appellant did not have a claim, not that he simply failed to plead sufficient facts to support a claim, the matter should be ended with prejudice. See West v. Searle & Company, 305 Ark. 33, 806 S.W.2d 608 (1991).

Appellee White contends that appellant's claim fails as to his liability because respondeat superior is not a basis for relief under 42 U.S.C. § 1983. Appellant admits that White was not warden at the time of the alleged constitutional violations. A general responsibility for supervising the operations of a prison is insufficient to establish the personal involvement required to support liability. Keeper v. King, 130 F.3d 1309 (8th Cir. 1997). White clearly did not have such personal involvement. Appellant has therefore stated no valid claim against White.

Appellant also failed to state a valid claim against appellee Wimberly. In order to state a case for a substantive due process violation, as alleged here, appellant must show an atypical and substantive deprivation that was a dramatic departure from the basic conditions of his confinement. Sandin v. Conner, 515 U.S. 472 (1995). Appellant asserts he could not be confined to punitive isolation without due process, but fails to cite any authority for the proposition. In fact, the settled law is that, in Arkansas, segregation to punitive isolation is not the type of deprivation that constitutes a constitutionally protected liberty interest. Kennedy v. Blankenship, 100 F.3d 640 (8th Cir. 1996). Because appellant has not established any liberty interest of which he was deprived, he has no claim. We affirm the trial court's order dismissing all claims with prejudice.

Affirmed.

Corbin, J., not participating.