Elroy L. Wabasha v. Jim Smith, Lynn Delano, Doug Wynia, Karen Stacey, Michael B. Smith, M. Vonteti
956 F.2d 745
8th Cir.
1992
Check Treatment

*1 offenses, his 42 U.S.C. service charged with mates pauperis under 28 filed com- filed in forma ever which was prison officials whether 1915(a). While Upon inmates. careful review of against such plaints U.S.C. § conspiracy out a record, have carried that the district officials we conclude the in- complaints against white filing by not dismissing no error court committed part mates, not become county would Therefore, we affirm. on by prosecuting simply conspiracy of that did receive. complaints it HEANEY, Judge, Senior Circuit plaintiff’s dismissal Accordingly, the dissenting. complaint is plain from I dissent. It is respectfully Affirmed. opinion accompanying the district sponte of Wabasha’s sua dismissal

court’s the court in forma un- for frivolousness equated the standard 1915(d)with the standard der 28 U.S.C. § under Federal to state a claim for failure 12(b)(6). The Procedure Su- Rule of Civil rejected prac- this expressly preme Court WABASHA, Appellant, Elroy L. Williams, 490 U.S. tice Neitzke As 109 S.Ct. Delano, Doug Wynia, SMITH, Lynn noted, raises Jim the Court “[w]hen Stacey, M. Michael B. Karen dis- question of law which the Vonteti, Appellees. correctly re- ultimately finds is trict court on plaintiff, dismissal solved No. appropriate, but grounds is Rule United States frivolousness on the basis of at 1833. Under not.” Id. 1915(d), sua a court section 18, 1991. Sept. only the complaint as frivolous dismiss 7, 1992. Filed Feb. arguable basis either complaint “lacks 9, 1992. Rehearing Denied March in fact.” Id. in law or between reason for the distinction 1915(d)dismissals 12(b)(6)and section Rule 1915(d) section is the absence under Falls, S.D., ar- Schlimgen, Sioux John protections afforded appellant. gued, Under plaintiffs under Rule Gen., Pierre, Atty. Geaghan, Asst. Frank arguable claim 12(b)(6), plaintiff with S.D., appellees. argued, for motion notice of usually receives claim and state a for failure to to dismiss HEANEY, BEAM, Judge, Before Circuit it, op- and an underlying LOKEN, Judge, Circuit Circuit Senior complaint before portunity to amend the Judge. Id. at motion. the court rules PER CURIAM. sponte dismis- at 1833-34. Sua indigent 1915(d)provide sals under Wabasha, Dakota in- a South Elroy L. protec- litigants no such mate, of the dis- appeals judgment final dismissing tions. prior to trict court1 sua Nichol, Dakota. Senior United Fred J. The Honorable Judge South the District of District States

746 Freeman, pauperis inappropriate. 925 F.2d the in forma statute was See goal The “ equality of consideration for ‘to assure at 267. ” S.Ct. at 1834 litigants.’ all Id. pro se albeit inart- States, 369 (quoting Coppedge v. United fully pleaded, arguable does not lack an 922, 917, U.S. complaint either in or fact. The basis law (1962)). more lenient Applying 21 friv alleges placement to in forma olousness standard 7, brightly-lit detention cell from gives indigent litigants complaints simply disciplinary hearing 1989 until his on Au- responsive pleadings opportunities 15, gust rights. 1989 violated his Al- civil opportunities accord “commensurate though process the due clause itself does plaintiffs” similarly un situated independently protect prison inmates 12(b)(6). der Rule Id. 490 U.S. at 109 arbitrary from transfers to administrative at 1834. Helms, segregation, Hewitt v. While the Court has not ad- 468, circum- dressed whether and under what (1983), may, through a state statute or permits sua stances Rule regulations, pro- rules or create a dismissals, 109 S.Ct. at see id. at 329 liberty remaining tected interest in in the “A can this court has: general prison population. 469-72, process prior be dismissed to service of 870-72; Ralston, 103 S.Ct. at Albers v. only if under 28 it is frivolous U.S.C. (8th Cir.1981). F.2d 815-16 Where Abdullah, 1915(d).” Freeman v. such explicitly state enactments combine Cir.1991). Accordingly, F.2d mandatory language specific substan- the district court dismissed Waba- predicates absent which administrative complaint only if sha’s involve an occur, liberty will not inter- indisputably meritless or clear- protected by the due ly factual contentions. baseless See arises. See 459 U.S. at Neitzke, 1832- S.Ct. at 871-72. The “Notice of Violation of Prohibited Here, the district court stated: Act” served on Wabasha the after he [Ujnless Mr. is entitled to some placed was in detention contains the follow- granted liberty interest which is language heading Dakota, regulations statutes or of South “RIGHTS”: he has no interest for general You are entitled to remain However, attach to. because Mr. Waba- population pending your hearing unless given he all the Officer-In-Charge determines that entitled to in a hear- you present a security threat ing, necessary it will not be to address discipline you of the institution. Should question of whether South Dakota your on detention status must some interest in re- be reviewed and a written pro- statement maining general prison population in the you vided to within 24 hours as to wheth- good or in time credits. you er must remain on detention until Wabasha v. Civ. No. mem. your hearing. (D.S.D. 24, 1990). op. July at 2-3 The district court thus dismissed Wabasha’s It is at least language that this dispositive gives on a issue of prisoners expectation based of freedom law, the constitutional from administrative pending prison disciplinary hearing procedure. hearing. The notice states that detention This is the only standard for failure to state a is warranted if the claim under Rule Unless presents Waba- determines that the inmate also meets the frivolous- discipline, threat to institutional 1915(d),however, ness standard of only continued if mandatory procedures district court’s sua notice review and are followed. protected state create a found that Supreme Court Hewitt general statutes prison population. regulations created general liberty interest facing discipline for a *3 id. at 470-72 & prison population. See is rule violation entitled to written notice of Similarly, in n. 6.1 S.Ct. at 870-72 & in the claimed violation advance of the Henderson, 631 F.2d 1287 Bills v. hearing, a written statement of factfind- Cir.1980), found that Ten the Sixth Circuit ings upon as to the evidence relied and the protect a prison guidelines created nessee taken, disciplinary for action reason and in freedom from adminis interest opportunity to call witnesses and findings. certain segregation absent trative present documentary evidence in his de- similarity of the at 1291-94.2 Given doing unduly if so is not hazardous to fense analyzed in to that relevant here safety goals. institutional or correctional Bills, appear beyond it does not Hewitt McDonnell, 418 U.S. Wolff prove no set of doubt that Wabasha “can 2963, 2978-80, 41 L.Ed.2d 935 support in of his claim which would facts contrast, facing an inmate a v. Ker him to relief.” See Haines entitle segregation transfer to administrative is 594, 596, 519, 520-21, ner, 404 U.S. charges entitled to some notice of the (1972)(articulating standard him, against opportunity present an to complaints). Waba- pro dismissal of se orally writing prison in views or thus raises charged deciding official to make the whether South Dakota question of law: transfer, and review the decisionmaker liberty inter rules create a prison charges and available evidence of general prison popu in against time the inmate within a reasonable hearing. disciplinary lation Hewitt, following the transfer. at 873-74. court concluded that it need The district Dakota stat- not determine whether South suggests that his Wabasha’s or proce- utes transfer have lacked one of the general prison requires. safeguards dural Hewitt Accord- its population. The district court based Wabasha received no present of the meaningful opportunity conclusion on the to disciplinary dures followed at Wabasha’s official who reviewed views to the hearing. due an inmate and ordered it contin- his detention status however, disciplinary hear- disciplinary proceeding, is ued until the time of the ing. inmate detention coextensive with that due an Wabasha He the “Notice segregation August received facing administrative when provided: rule stated: 2. A Tennessee 1. A statute temporarily to confined Segregation imple- will be Administrative Custody in Close Maximum Administrative inmate to the transferral of the mented upon approval investigative status peri- adjustment center for an indeterminate where it of the institution purpose administrative od of time. The of that there is a threat of a has been determined provide place maximum is to of disturbance, threat to the serious serious others, individual, custody protect to others. The inmate shall be he individual or promote order. Administra- and maintain writing possible as soon as notified those is recommended investigation he will receive and that is maladjustment, problems serious men with being hearing any disciplinary action is abnormality to the illness or sexual mental investigation complet- considered after safety degree safety of others that their or the investigation begin immediately An shall ed. day day sta- in their normal threatened whether or not a behavior viola- to determine tion. If no behavior violation tion has occurred. occurred, Manual Adult Policies and Procedures Service be released as the inmate must 4.602, Correction, quoted Department reason for the concern soon as the Bills, days. within ten has abated but in all cases F.2d at 95.104(b)(3) (1978), quoted in 37 Pa.Code at 470 n. 103 S.Ct. at 871 n. 6. 459 U.S. August (quoting Piphus, Carey of Prohibited Act” on of Violation 8, 1989, August Sergeant 1989. Also on (1978)(footnote Doug Wynia omitted)). reviewed Wabasha’s detention and citations until continued it the date of his status and Although may prove 9, 1989, hearing. August On resolved him based on acknowledged receipt of the vio- Wabasha responsive pleadings by appellees, his com- notice, lation returned it to the disci- plaint presents indisputably neither an mer- plinary guilty,” office marked “not and re- clearly itless nor baseless fac- quested hearing. certain witnesses at his tual contentions. Because I do not believe then remained in administrative argua- lacks an detention until fact, ble basis either law or I would *4 disciplinary hearing. after his remand the case to the district court with correct, complaint’s chronology If the requiring instructions the defendants to an- Sergeant Wynia reviewed and extended swer the Wabasha's detention status Waba- before present any was allowed written regarding the transfer deci-

oral statement According

sion.

spent eight days segrega- in administrative

tion a decisionmaker before reviewed light

detention status in of his denial of the charged violation. America, Appellee, UNITED STATES of Wabasha's thus raises an ar- guable question of fact: whether Wabasha KELLEY, Appellant. Ronald Leland procedure pre- received even the informal satisfy scribed Hewitt to the “minimum America, Appellee, UNITED STATES of requirements” due connection with a transfer to administra- JIRUSKA, Rodney Ray Appellant. segregation. See id. not, 873-74. If he did Nos. procedural safeguards employed in the sub- United States Court of sequent disciplinary hearing would not remedy process. the initial denial of due a similar case before the May posture, a similar the Court noted: Decided Feb. subsequent hearing accord- [E]ven petitioner any minimized or eliminated compensable resulting harm from the ini- procedural safeguards,

tial denial of

constitutional claim is nonetheless action- able_ right “Because the

dural due is ‘absolute’ in the depend upon

sense that it does not

merits of a claimant’s substantive asser-

tions, importance and because of the

organized society

process be observed ... the denial of should be action- damages proof

able for nominal without injury.”

of actual ... Rowe,

Hughes v. (1980) n.