Garner v. Simmons

UNITED STATES COURT OF APPEALS
Filed 8/23/96
FOR THE TENTH CIRCUIT
______
J. T. GARNER, )
)
Plaintiff-Appellant, )
)
v. ) No. 96-3189
) (D.C. No. 96-CV-3133)
CHARLES SIMMONS, Kansas Secretary ) (Dist. of Kansas)
of Corrections; JAY SHELTON, CONNIE)
M. JOHNSON, Correctional Officer; )
PATRICIA CANFIELD, Correctional )
Officer; ROBERT PERDUE, Assistant )
Warden, NCF; R.M. CROWDER; RICHARD )
WYATT, Member Administrative Board,)
NCF; J. RANDOLPH RETHANE, Member of)
Administrative Review Board, NCF; )
K. RAY, Member of Administrative )
Segregation Review Board, NCF; B.E.)
MARBLE, Correction Officer, NCF; )
WADE YOUNKIN, Unit Team Manager, )
NCF; (NFN) RUNNELL, Unit Team, )
First Hearing Officer, NCF; (NFN) )
ROHLING, Classification Administra-)
tor, NCF, )
)
Defendants-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT and MURPHY, Circuit Judges.
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*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
After examining the briefs and appellate record, this panel
has determined unanimously to honor the parties’ request for a
decision on the briefs without oral argument. See Fed. R. App. P.
34(f); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Dr. J. T. Garner, an inmate of the Kansas Department of
Corrections, Lansing Correctional Facility, Lansing, Kansas,
appearing pro se, appeals from the district court’s order denying
his Motion to Reconsider the court’s order dismissing his 42 U.S.C.
§ 1983 civil rights complaint on the ground that Garner’s claim of
retaliation “is too vague and conclusory to state a claim of
constitutional deprivation or to allow for any meaningful response
by defendants.” (Order of March 22, 1996, at 2).
In his pro se complaint, filed March 11, 1996, Garner alleged
that defendant Charles Simons, as Chief Officer for the Kansas
Department of Corrections, “rubber stamped” his approval of two
“fabricated, false reports” made by defendant C. M. Johnson in
“reprisal, retaliatory and harassment” of Garner which caused
Garner to “lose his medium security status which was changed to
maximum security status” subjecting Garner to “solitary confinement
in administration segregation then subsequently transferred behind
prison walls, [apparently from the medium security facility at El
Dorado to the maximum security facility at Lansing], with loss of
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all earned privileges of restriction to a prison cell needlessly.”
Garner alleged that after Ms. Johnson, a prison guard, was
reprimanded as a result of his successful lawsuit wherein he
complained that she had wrongfully confiscated his long underwear,
Johnson retaliated against him by filing the false reports,
planting antacids in his cell, and by submitting false disciplinary
reports resulting in his change from medium security status to
maximum security status. Garner alleged that this caused him
extreme hardship and irreparable loss of pay and income.
Garner sought: $250,000 in punitive damages and $100,000 in
compensatory damages against defendants Johnson and Patricia
Canfield; $50,000 punitive damages and $50,000 compensatory damages
from the remaining defendants; restoration to medium security
custody status or possibly to minimum by reason of his exemplary
record; and that the “bogus” writeups be deleted from his record.
On appeal,1 Garner contends that the district court erred in
failing to consider the well supported facts and issues
substantiating his allegations that he was retaliated against by
false, malicious disciplinary reports which denied him due process
of law.
On appeal, we must treat Garner’s pro se pleadings liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972). We review a district
1
The district court denied Garner’s leave to proceed on
appeal in forma pauperis. We grant Garner’s motion filed in this
court.
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court’s order of dismissal pursuant to Fed. R. Civ. P. 12(b)6) for
failure to state claim by accepting all factual allegations of the
plaintiff as true and by resolving all reasonable inferences in his
favor. Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir.
1995); Arnold v. McClain, 926 F.2d 963, 965 (10th Cir. 1991). Rule
12(b)(6) must be read in conjunction with Fed. R. Civ. P. 8(a)
which sets forth the requirements for pleading a claim, calling for
“a short and plain statement of the claim showing that the pleader
is entitled to relief.” In Brown v. Zavaras, 63 F.3d 967, 972
(10th Cir. 1995), we held that appellant’s pro se allegations “are
merely conclusory in that they do not allege the factual basis for
an equal protection claim, and even pro se litigants must do more
than make conclusory statements regarding constitutional claims.”
See also Petrick v. Maynard, 11 F.3d 991, 995 (10th Cir. 1993).
We have carefully reviewed the record on appeal. We affirm
the district court’s dismissal as to all defendants/appellees
except defendant/appellee C.M. Johnson substantially for the
reasons set forth in the district court’s Orders of March 22, 1996,
and May 15, 1996. We hold that Garner’s factual allegations as to
Johnson are sufficient to withstand a Rule 12(b)(6) motion. We
reverse and remand for further proceedings as to defendant/appellee
Johnson.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings.
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Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge