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West v. Johnson

United States District Court, D. Nebraska

August 7, 2017

TROY LEE WEST, Plaintiff,
v.
BRAD JOHNSON, Director; ROBERT MITCHELL, C.O.; and ANDREW TRUSLOW, Sargent; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Plaintiff filed a Complaint on June 5, 2017. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 6.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff is a prisoner confined at the Lancaster County Department of Corrections who was found guilty after a disciplinary hearing of refusal to work and sentenced to 10 days in disciplinary segregation and deprivation of 10 days' good-time credit. Defendant Brad Johnson, director of the facility, affirmed the decision. Plaintiff requested that Johnson restore his 10 days' good-time credit.

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He asserts that the procedures used in his disciplinary hearing violated his Fourteenth Amendment due process rights. Specifically, Plaintiff claims that the reporting officer, Defendant Robert Mitchell, filed a false misconduct report and that the hearing officer, Defendant Andrew Truslow, failed to call and question Plaintiff's requested witnesses, who would have testified that he did not refuse to work.

         Plaintiff seeks restoration of his 10 days' good-time credit, $190 for each day of the 10 days' good-time served, and an order to the “dept. of corrections to cease and desist violating inmates due process, which they do on a daily basis.” (Filing No. 1 at CM/ECF p. 5.)

         II. APPLICABLE STANDARDS OF REVIEW

         The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. DISCUSSION

         A. Restoration of Good Time/Damages for Deprivation of Good Time[1]

         The Eighth Circuit has held that the removal of a prisoner's good time credits in a disciplinary hearing implicates a liberty interest protected by the Due Process Clause. Espinoza v. Peterson,283 F.3d 949, 951 (8th Cir.2002) (citing Wolff v. McDonnell,418 U.S. 539, 555-58 (1974)). However, a state prisoner who seeks restoration of good time should do so through a writ of habeas corpus, which requires exhaustion of state remedies. Offet v. Solem,823 F.2d 1256, 1258 (8th Cir. 1987). Where a prisoner ...


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