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Perry v. Wagganer

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

May 21, 2018

BERRY PERRY, Plaintiff,
DARRELL WAGGANER, et al., Defendants.



         Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42 U.S.C. § 1983. Having reviewed plaintiff's financial information, the Court assesses a partial initial filing fee of $4.98, which is twenty percent of his average monthly deposit. See 28 U.S.C. § 1915(b). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

         Standard of Review

         Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “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.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. at 679.

         When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled facts as true. Furthermore, the Court liberally construes the allegations.

         The Complaint

         Plaintiff Berry Perry, currently an inmate at South Central Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 alleging due process, equal protection, First Amendment, Fourth Amendment, and Eighth Amendment violations arising from an order of disciplinary segregation and administrative segregation after Perry was found guilty of a conduct violation at Eastern Reception Diagnostic and Correctional Center (“ERDCC”). Plaintiff names the following employees of ERDCC as defendants: Darrell Wagganer (Investigator), Amy Roderick (Inspector General), Joe Hoffmeister (Deputy Warden), Teri Lawson (Assistant Warden), Stan Jackson (Deputy Warden), Troy Steele (Warden), Sean Wescott (Corrections Lieutenant), Dennis Martin (Corrections Officer), Douglas Montgomery (Functional Unit Manager (“FUM”)), Dale Phillips (FUM), and Derek Barker (Corrections Case Manager).

         On September 2, 2015, plaintiff was accused of a Prison Rape Elimination Act (“PREA”) crime investigated by defendant Wagganer. Another inmate, Mitchell, gave staff at ERDCC a PREA kite that plaintiff forced another inmate, Ponticello, to have deviant sexual intercourse with plaintiff. Defendant Wagganer obtained a DNA sample from plaintiff, interviewed plaintiff twice, interviewed the victim, ordered a rape kit examination of the victim, and prepared an investigator's report.

         On December 4, 2015, plaintiff had a disciplinary hearing before an Adjustment Board Committee regarding his PREA conduct violation. Defendant Montgomery read plaintiff's Rule 7.1 conduct violation report, and asked plaintiff if he had a statement. Plaintiff gave the committee a two-page written statement with supporting documentary evidence. Plaintiff told the committee that he had asked for videotape footage and to interview several witnesses. The Committee had not reviewed any videotape footage, and no witnesses were called at the hearing.

         The committee relied on defendant Wagganer's investigator's report and found plaintiff guilty of forcible sexual misconduct. Plaintiff states he has not seen the investigator's report, and no evidence was presented during his disciplinary hearing that would allow for a finding of guilt. Plaintiff was sanctioned to thirty days disciplinary segregation, referred to administrative segregation, and referred for prosecution. Plaintiff grieved this sanction twice, but his grievances and subsequent appeals were denied.

         Plaintiff complains that the sanctions were unlawful because there was no evidence of rape in the record. He also states his procedural due process rights were violated because the committee failed to comply with MODOC policy. Because plaintiff was found guilty of a PREA-related conduct violation, plaintiff is now classified as a higher risk offender, a “PREA alpha, ” and is mandated to be housed with other “alpha only” offenders, who are typically more aggressive and violent than other offenders. Additionally, because his custody level has increased, he states he will not be eligible to participate in work release, vocational classes, and will not have as much time out of his cell for other activities. Plaintiff also states he may be denied parole eligibility during his parole board hearing, which will be held in October 2019.


         Fourteenth Amendment Due Process Claim

         Plaintiff alleges that his due process rights were violated when he was issued a PREA conduct violation because he was denied access to the videotape evidence and witness statements, which he claims would have exonerated him at the disciplinary hearing. He also complains that no evidence ...

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