Horse v. Young et al, No. 4:2014cv04137 - Document 11 (D.S.D. 2014)
Court Description: Memorandum Opinion and Order adopting in part and denying in part 9 Report and Recommendation; granting in part and denying in part 10 Objection to Report and Recommendation. Signed by U.S. District Judge Lawrence L. Piersol on 12/17/2014. (JLS)
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Horse v. Young et al Doc. 11 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION ROBERT A. HORSE, Plaintiff: vs. WARDEN DARIN YOUNG, South Dakota State Penitentiary; and CABINET SECRETARY DENNIS KAEMINGK, South Dakota Department of Corrections, Defendants. FILED DEC 17 2014 * CIV 14-4137 * * * MEMORANDUM OPINION * * AND ORDER RE: OBJECTIONS TO * REPORT AND RECOMMENDATION * * * * * * * * ****************************************************************************** The Plaintiff: Robert A. Horse, filed his Objections to the Report and Recommendation on November 7, 2014. The Court grants the objections in part as the Court finds that the pro se Complaint states a cause 0 faction in that it alleges on the continuation 0 f page 3 ''The prison 0 fficials never evaluated the credibility 0 fthe confidential informates, and the anonymous kites used to convict ofthe disciplinary report." PROCEDURAL AND FACTUAL BACKGROUND PlaintiffRobert A. Horse is a prisoner at the South Dakota State Penitentiary. He brings this ยง 1983 action based on a decision by the Prison's Disciplinary Hearing Officials in April of2014, in which he received punishment of90 days in Disciplinary Segregation and a $100 fine for violating L-41 and L-45. L-41 and L-45 involve "Conduct which disrupts or interferes with the security or good order ofthe institution or interfering with a staff member in the performance ofhislher duties including circumventing or attempting to circumvent any rule, regulation or L-45 Engaging in gang organization, recruitment, or blatant displays ofgang activity or materials related to Security Threat Groups." The Incident Details state: On or about the above date and time an inmate was assaulted in the East hall shower room The following day Special Security was made aware ofthis incident. During Dockets.Justia.com the investigation over the next several days we conducted several interviews invo lving reliable CI's and received numerous kites indicating the involvement ofknown RBH gang members and inmate Horse. During this process inmate Horse's name was mentioned in most ofthe kites and by the CI's. Special Security has concluded that inmate Horse was involved in the assault by having the known RBH gang member place a ''hit'' on the victim. Special Security also believes that this was a result ofthe actions at the NACT meeting that took place earlier in the day. Inmate Horse is the president ofthis organization. After unsuccessfully appealing within the penitentiary, Horse brought this action claiming violation ofthe First, Fifth, Eighth, and Fourteenth Amendments ofthe Constitution. Specifically, Horse claims that Defendants violated his rights by not allowing him a polygraph examination to prove his innocence and by failing to properly evaluate the credibility 0 f the confidential informants and the kites used to convict him of the violations set forth in the disciplinary reports. Polygraph Examination In Freitas v. Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988), the Eighth Circuit held that prisoners were not entitled to polygraph examinations for disciplinary hearings. Based on this holding the Court accepts the Report and Recommendation in dismissing this claim regarding entitlement to a polygraph examination. Curtailed Confrontation Rights in Use of Confidential Informants and Anonymous Kites The pro se Complaint, given the latitude to pro se litigants, does state a claim upon which relief may be granted in that there is some curtailed confrontation right in prison disciplinary proceedings. See Sira v. Morlon, 380 F.3d 57 (2d Cir. 2004), but see McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1983). In the McCollum opinion Judge Posner and the panel remanded for a consideration of the various procedural safeguards discussed in the opinion. ''The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one ofthese interests is at stake." Wilkinson v. Austin, 545 U.S. 209,221 (2005). Procedural due process questions are examined in two steps: 1. the first step asks whether there exists a liberty or 2 property interest which has been interfered with by the State; and 2. the second step examines whether the procedures attendant upon that deprivation were constitutionally sufficient. Kentucky Dep't. ofCorrs. v. Thompson, 490 U.S. 454, 460 (1989) (citing Hewitt v. Helms, 459 U.S 460, 468 (1983); and Board of Regents of State Colis. v. Roth, 408 U.S. 564, 571 (1972)). The courts generally limit due process hberty interests created by prison regulations to freedom from restraint which, while not exceeding a prisoner's sentence in such an unexpected manner as to give rise to protection by due process clause of its own force, nonetheless imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents ofprison life. Sandin v. Conner, 515 U.S. 472, 484 (1995). In addressing the threshold question on the merits of what prison action is a deprivation of hberty within the meaning 0 f the due process clause of the Fifth Amendment, this Court is aware that the Eighth Circuit in Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010), has held that nine months in administrative segregation alone did not amount to an atypical or significant hardship. However, a liberty interest may be conferred based on a stigmatizing consequence of punishment. See Vitek v. Jones, 445 U.S. 480, 493-494 (1980) (involuntary mental commitment implicated due process clause of Fourteenth Amendment); Washington v. Harper, 494 U.S. 210, 221-222 (1990) (involuntary administration of psychotropic drug to nonconsenting prisoners conferred upon such prisoners a protected liberty interest in being free from arbitrary administration of antipsychotic medications). Horse alleges and the record at this early stage of the proceedings support an allegation that the characterization of a prisoner as a gang member has a stigmatizing effect that supports the finding of a loss of a sufficient liberty interest. It may be that the development of the record in this case will come to the conclusion that Eighth Circuit case law does not support a finding ofa deprivation ofliberty so that the confrontation question is not reached in Federal Court. Those determinations will no doubt be addressed in subsequent proceedings on this case. Accordingly, IT IS ORDERED: 1. That the Magistrate Judge's Report and Recommendation, Doc. 9, is adopted in part and denied in part as set forth in this opinion. 3 2. That the Objections of Plaintiff, Doc. 10, are granted in part and denied in part. 3. That the Defendants shall answer the Complaint within the statutory time allowed. Dated this 17th day ofDecember, 2014. BY THE COURT: wrence L. Piersol United States District Judge ATTEST: JOSEPH HAAS, CLERK Deputy 4
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