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Proby v. Russell

United States District Court, E.D. Missouri, Eastern Division

August 12, 2016

GEORGE PROBY, JR., Plaintiff,
TERRY RUSSELL, et al., Defendants.



         This matter is before the Court on Defendants’ motion for summary judgment. (Doc. No. 67.) Plaintiff George Proby is a Missouri inmate, and initiated this action pro se against a multitude of prison officials. Plaintiff alleges that Defendants violated his constitutional rights by placing and retaining him in administrative segregation, and brings a Due Process claim under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983.[1] He also alleges that he has not received fair administrative procedures and has been subject to retaliation for exercising rights under the First Amendment (among other, less defined retaliation claims, see Doc. No. 1-1 at 12), that he has been denied access to the law library and other legal materials, and that he has not been afforded necessary mental health treatment. Defendants move for summary judgment, arguing that Plaintiff was afforded due process, that he failed to exhaust administrative remedies prior to bringing the instant suit, that no retaliation took place, and that Defendants are entitled to qualified immunity. For the reasons set forth below, Defendants’ motion for summary judgment will be granted.


         The record, construed in favor of the nonmoving party, establishes the following. Plaintiff is currently incarcerated at Jefferson City Correctional Center (“JCCC”), a Missouri Department of Corrections (“DOC”) facility located in Jefferson City, Missouri. On October 17, 2012, Plaintiff was incarcerated at Eastern Reception, Diagnostic and Correctional Center (“ERDCC”), a DOC facility in Bonne Terre, Missouri.

         The individual Defendants[2] in this case were and are employees of the DOC who held various positions at the two facilities. The following Defendants remain in the case: Terry Russell, the warden and superintendent of ERDCC; Jason Wilson, deputy warden of ERDCC; Alan Butterworth, the functional unit manager at ERDCC; Jim Wallen, Frederick Nelson, Patricia Jones, Noel Obi, Bradley Hall, and Jeremy Elless, correctional officers at ERDCC; James Nicholson, an investigator at ERDCC; Jay Cassady, warden of JCCC; Paul Gore, functional unit manager at JCCC; and Alan Earls, the director of the DOC.

         On October 17, 2012, Plaintiff was involved in an incident in the ERDCC mess hall wherein he allegedly engaged in a fight with another inmate. Plaintiff characterizes the interaction as an “assault” on him by the other inmate. Defendants Frederick Nelson and Patricia Jones were the first officers to respond to the fight. Defendant Nelson alleged that he was kicked in the head by Plaintiff, but Plaintiff denies that anyone was kicked in the head or otherwise injured during the incident.

         Plaintiff had already been assigned two conduct violations-including one for fighting- earlier in the year. Following the incident in the mess hall, Plaintiff was assigned to administrative segregation, and received three conduct violations for assaulting another offender and for assaulting a corrections officer. After serving thirty days in administrative segregation at ERDCC, and following a major disciplinary action hearing (at which Plaintiff was not present) wherein it was determined that he violated prison rules by assaulting another inmate and a corrections officer during the mess hall incident, Plaintiff was transferred to administrative segregation in the super maximum wing of JCCC. Defendants allege that Plaintiff was twice offered the opportunity to waive his right to remain silent and make a statement to Defendant Alan Butterworth, the functional unit manager, regarding the conduct violations he received in advance of his major disciplinary hearing, but Plaintiff refused to waive his rights and make such a statement.

         Plaintiff was criminally charged with assault on a correctional officer, a Class B felony, and was assigned an attorney. Plaintiff was found not guilty at trial approximately a year after the mess hall incident took place.[3]

         Upon transfer to JCCC, Plaintiff was placed on Phase 0 of JCCC’s phase program, a tiered program by which inmates are afforded incrementally more privileges following periods of good behavior. Plaintiff received periodic classification reviews, including in November and December 2012, and in February, May, July, September, and December 2013. Due to conduct violations, Plaintiff progressed slowly through the phase system; although he was temporarily promoted in September of 2013, bed space was unavailable, and he received another conduct violation before space became available approximately one month later. In April 2013, he received a violation after officers found 20 packages of bacitracin in his cell while Plaintiff was in the shower. Plaintiff then refused to exit the shower, causing a disturbance. (Doc. No. 68-13 at 2.) He was finally promoted to the next phase in December 2013.

         Upon the Court’s request, the parties submitted additional evidence establishing Plaintiff’s housing status. Although Plaintiff was promoted to the next phase in December 2013, Plaintiff would later be issued additional conduct violations. In fact, Plaintiff has accumulated 18 conduct violations total, and therefore has yet to be released into the general prison population. These additional conduct violations are immaterial and unrelated to Plaintiff’s claims before this Court. For purposes of analyzing Plaintiff’s claims, the Court considers whether Plaintiff received meaningful review, and his promotion in December 2013 suggests that he did. To the extent Plaintiff wishes to challenge the basis for the additional violations he received, and the punishment imposed upon him as a result, he must do so separately; such claims are not before the Court in the instant suit.

         Plaintiff originally filed administrative complaints, but apparently abandoned them at the grievance stage, though this is the subject of some dispute between the parties. Plaintiff was eventually advised that he should stop filing duplicate grievances, and that his continued filing of duplicate grievances would be considered misuse of the procedure. (Doc. No. 1 at 7.)

         Plaintiff filed his instant lawsuit on September 16, 2014, asserting a Due Process claim under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 and a First Amendment Retaliation Claim against Defendants Cassady, Hall, and Obi. Plaintiff alleges that while in solitary confinement, his health deteriorated, he lost 38 pounds and developed hypertension, and he became paranoid and anti-social. He claims he has not received a needed psychological evaluation, and that although he required mental health treatment during his time in administrative segregation, his pleas for such treatment were ignored.

         Arguments of the Parties

         Defendants move for summary judgment, and assert four arguments. First, Defendants argue that Plaintiff received requisite procedural due process and was not deprived of a liberty interest. They argue that he was placed in administrative segregation for good cause, and that he has received frequent and meaningful review of his status. Next, Defendants Cassady, Hall, and Obi argue that they did not retaliate against Plaintiff for expression covered by the First Amendment, and that Plaintiff has failed to offer any evidence of retaliatory motive, as is required to establish a claim of First Amendment retaliation. Meuir v. Greene Cnty. Jail Emps., 487 F.3d 1115, 1119 (8th Cir. 2007) (citations omitted). Next, Defendants argue that Plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C § 1997e(a), because he has not completed the grievance process for any of his complaints but instead proceeded to assert his claims in federal court. Finally, Defendants argue their actions are protected by qualified immunity, because they are government officials (by virtue of their status as prison employees) and their conduct does not violate a clearly established statutory or constitutional right, of which a reasonable person would have known. See, e.g., Krout v. Goemmer, 583 F.3d 557 (8th Cir. 2009).

         In response, Plaintiff offers mostly additional factual assertions. He claims he has been denied access to legal materials and has been unable to conduct discovery, which has made it difficult for him to effectively argue his case (Doc. No. 74 at 2). However, ...

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