Ricky Tatum v. Adrian Wallace , 402 F. App'x 158 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1153
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Ricky Barnard Tatum, *
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Appellant, *
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v. *
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Greg Harmon; Aundrea Weekly; * Appeal from the United States
Steve Outlaw; Maureen Williams; * District Court for the
Wallace McNary; Essie Clay, * Eastern District of Arkansas.
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Defendants, * [UNPUBLISHED]
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Adrian Wallace, Security Officer, *
East Arkansas Regional Unit, *
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Appellee, *
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Larry Norris; Brenda Perry; Tameka *
Cody; April Brandon; R. Hobbs, *
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Defendants. *
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Submitted: November 2, 2010
Filed: November 29, 2010
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Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Arkansas inmate Ricky Barnard Tatum appeals the district court’s dismissal of
his 42 U.S.C. § 1983 action following an evidentiary hearing. We affirm.
Tatum, an inmate at the East Arkansas Regional Unit (EARU), filed a complaint
against several EARU employees, including Officer Adrian Wallace. He alleged that
Wallace was sexually harassing him, and issued him false disciplinaries in retaliation
for his filing grievances about the harassment; and that the other defendants had failed
to protect him. Tatum later moved to voluntarily dismiss the complaint without
prejudice against all defendants except Wallace, stating he had not exhausted his
administrative remedies. The court granted the motion and dismissed the action
against all defendants except Wallace without prejudice. The court denied later
motions by Tatum to file amended complaints adding most of the defendants who had
been dismissed, as well as additional defendants. The court held an evidentiary
hearing on Tatum’s retaliation claim, at which Tatum and Wallace, as well as two
additional witnesses, testified. The court dismissed the complaint following the
hearing, finding that Tatum could not state a claim for retaliatory discipline because
for each instance of allegedly retaliatory discipline, he was found guilty after a
disciplinary hearing.
We first hold that the district court did not err in denying Tatum leave to amend
the complaint to include the previously dismissed defendants and other new
defendants, as there was no evidence the claims were fully exhausted, and the claims
against the newly named defendants were conclusory. See In re NVE Corp. Sec.
Litig., 527 F.3d 749, 752 (8th Cir. 2008) (denial of leave to amend is ordinarily
reviewed for abuse of discretion, but when leave is denied on basis of futility, review
is de novo); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (inmate must exhaust
administrative remedies before filing suit in federal court); Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985) (requiring a pro se complaint to contain specific facts
supporting its conclusions). Further, Tatum could not state a claim against Wallace
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for a violation of prison policy. See Gardner v. Howard, 109 F.3d 427, 430 (8th Cir.
1997) (no § 1983 liability for violation of prison policy).
As to Tatum’s claim that Wallace retaliated against him for exercising his First
Amendment rights, because the claim was dismissed following an evidentiary hearing
and Tatum did not make a timely jury demand, we review the district court’s factual
findings for clear error and its conclusions of law de novo. See Choate v. Lockhart,
7 F.3d 1370, 1373 & n.1 (8th Cir. 1993); see also Fed. R. Civ. P. 38(b) (party may
demand jury trial “no later than 14 days after the last pleading directed to the issue is
served”). We agree with the district court that the findings of guilt following a
disciplinary hearing were sufficient to defeat Tatum’s claims as to the disciplinary
charges filed against him on November 6 and December 4, 2008, and April 8, 2009.
See Cowans v. Warren, 150 F.3d 910, 912 (8th Cir. 1998) (per curiam) (inmate does
not state retaliation claim where discipline was imposed for actual violation of prison
rules); Hartsfield v. Nichols, 511 F.3d 826, 829, 831 (8th Cir. 2008) (defendant may
successfully defend retaliatory-discipline claim by showing “some evidence” that
inmate actually committed rule violation; report from correctional officer, even if
disputed by inmate and supported by no other evidence, legally suffices as some
evidence upon which to base prison disciplinary violation if violation is found by
impartial decisionmaker); Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)
(critical inquiry in retaliation claim is whether prison disciplinary committee
ultimately found, based on some evidence, that prisoner committed charged violation).
Finally, to the extent Tatum has raised the issues on appeal, we hold that the
district court did not abuse its discretion in denying some of Tatum’s discovery
requests, see Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th
Cir. 2008) (standard of review), or in denying his motions for appointed counsel, see
Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (trial court has broad discretion in
deciding whether to appoint counsel to indigent civil litigant; discussing factors).
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Accordingly, we affirm the judgment of the district court, and we deny as moot
Tatum’s appellate motion.
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