Tim L. Godby v. James Basinger

Sep 10 2013, 5:41 am
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
TIM L. GODBY GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIM L. GODBY, )
)
Appellant-Plaintiff, )
)
vs. ) No. 77A05-1201-PL-3
)
JAMES BASINGER, et al., )
)
Appellee-Defendant. )
APPEAL FROM THE SULLIVAN CIRCUIT COURT
The Honorable P. J. Pierson, Judge
Cause No. 77C01-1011-PL-421
September 10, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Plaintiff, Tim Godby (Godby), appeals the trial court’s grant of
summary judgment in favor of Appellee-Defendants, James Basinger (Basinger), Linda
VanNatta (VanNatta), Faith Reeves (Reeves), Diana Daugherty (Daugherty), and Aleta
Burnett (Burnett)(collectively, the Defendants).
We affirm.
ISSUE
Godby raises one issue on appeal, which we restate as: Whether the trial court
properly granted summary judgment in favor of the Defendants.
FACTS AND PROCEDURAL HISTORY
The Indiana Department of Correction (DOC) oversees the Wabash Valley
Correctional Facility (WVCF), where Basinger acts as Superintendent, Reeves is a
counselor, Daugherty is a unit team manager, and Burnett is a casework manager.
VanNatta is a final level grievance executive at the DOC. Godby has been incarcerated
at the WVCF since October 1997.
The DOC has promulgated rules of conduct for offenders entitled the Adult
Disciplinary Procedures Code, Policy No. 02-04-01 (ADP). Godby possessed a version
of the ADP dated January 2004, which listed various offenses relating to the use or
possession of tobacco. Possession of a tobacco or tobacco-related product was classified
as a Class C offense, ADP C-369, and possession of multiple tobacco or tobacco-related
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products was classified as a Class B offense, ADP B-245. The ADP also contains a
schedule listing sanctions for Class B and C offenses.
In addition, the DOC has established rules regarding offender visitation pursuant
to the Policy and Administrative Procedures, Offender Visitation, Policy No. 02-01-102,
(Offender Visitation Policy).1 Section XVIII of the Offender Visitation Policy provides,
in relevant part:
Offenders who are found guilty of certain violations of the applicable
disciplinary code shall be subject to non-contact or video visits for
prescribed periods of time. [… O]ffenders who have been found guilty of
the following disciplinary code offenses may be permitted only non-contact
visits:
 Multiple findings of guilty for use or possession of tobacco, tobacco
associated products or unauthorized tobacco substitute products
(including, but not limited to, more than one lighter, more than one
box of matches, more than one package of cigarette rolling papers,
etc.)
(Appellant’s App. p. 102). For a first offense, visitation may be restricted to non-contact
or video visitation for six months, a twelve month restriction for a second offense, and a
permanent restriction for a third offense. These restrictions, however, are not “part of
any disciplinary action taken against the offender […] but, shall be an administrative
action in addition to any disciplinary action taken against the offender.” (Appellant’s
App. p. 103).
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Two versions of the Offender Visitation Policy are relevant here. The first, with an effective date of
September 1, 2007, provided only for non-contact visitation restrictions, i.e., “the offender and the visitor
are separated by a physical barrier.” (Appellant’s App. p. 113). The second version, effective June 1,
2009, in relevant part, added video visitation, i.e., “visitation through electronic media,” as a restriction.
(Appellant’s App. p. 85). We cite to the 2009 version in this opinion.
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On September 13, 2007, Godby was found guilty by the WVCF Disciplinary
Hearing Board of violating ADP Code B-245, which proscribed the possession of
multiple tobacco or tobacco-related products, and “placed on non-contact visitation status
for the set period of six (6) months.” (Appellant’s App. p. 175). Thereafter, the ADP
Code was apparently revised, eliminating B-245 as an offense and recodifying the
possession of tobacco or tobacco-related products into a single offense, ADP Code C-
305. On January 20, 2010, Godby pled guilty to possession of tobacco in violation of
ADP Code C-305. On January 25, 2010, his visitation rights were restricted to non-
contact or video visitation for one year based upon a “second offense” for violating
tobacco-related rules. (Appellant’s App. p. 14). On March 22, 2010, Godby pled guilty
to another violation of ADP Code C-305.
On April 7, 2010, Godby filed a formal grievance protesting his one-year
visitation restriction. He alleged that the ADP did not impose visitation restrictions for
Class C offenses, but only for Class A and B offenses. He also alleged that he did not
receive adequate notice that his visitation could be restricted to non-contact or video
visitation under the Offender Visitation Policy and that the Offender Visitation Policy, as
amended, had never been posted in his housing unit. Godby requested that his contact
visitation be reinstated.
On April 15, 2010, Godby’s visitation privileges were permanently restricted to
non-contact or video visitation based upon his March 22, 2010 violation. On May 25,
2010, Godby filed a second formal grievance, requesting a one year visitation restriction.
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However, Godby acknowledged that he was aware of the Offender Visitation Policy
based upon the one year non-contact or video restriction he received on January 25, 2010.
Reiterating his earlier formal grievance, Godby claimed that he should not have had the
one year restriction because changes to the Offender Visitation Policy were not posted in
his housing unit. Godby forwarded 21 affidavits from other inmates housed in his
housing unit which attested that the 2009 version of the Offender Visitation policy had
not been posted. Following denials of both formal grievances, Godby appealed. On July
6 and 15, 2010, VanNatta denied both appeals.
On November 1, 2010, Godby filed his complaint for relief under 42 U.S.C. §
1983, alleging that due process required “fair notice of a rule before being sanctioned”
and that the Defendants violated his due process rights under the United States and
Indiana Constitutions by restricting his visitation without adequate notice. (Appellant’s
App. p. 11). On October 17, 2011, the Defendants filed a motion for summary judgment.
On December 5, 2011, the trial court granted Defendants’ motion and dismissed the
cause with prejudice.
Godby now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Summary judgment is appropriate only when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial
Rule 56(C). A fact is material if its resolution would affect the outcome of the case.
Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). An issue is genuine if a trier of fact
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is required to resolve the parties’ differing accounts of the truth or if the undisputed facts
support conflicting reasonable inferences. Id.
This court reviews the trial court’s ruling on summary judgment, standing in the
shoes of the trial court and applying the same standards in deciding whether to affirm or
reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d
604, 607 (Ind. Ct. App. 2008), trans. denied. On appeal, this court must determine
whether there is a genuine issue of material fact and whether the trial court has correctly
applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in
the light most favorable to the non-moving party. Id. at 608. The party appealing the
grant of summary judgment has the burden of persuading this court that the trial court’s
ruling was improper. New Albany Historic Preservation Comm’n v. Bradford Realty,
Inc., 965 N.E.2d 79, 84 (Ind. Ct. App. 2012). When the defendant is the moving party,
the defendant must show that the undisputed facts negate at least one element of the
plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative
defense that bars the plaintiff’s claim. See id. Accordingly, the grant of summary
judgment must be reversed if the record discloses an incorrect application of the law to
the facts. Id.
Section 1983 creates no substantive right of its own, but acts only as a vehicle to
afford litigants a civil remedy for deprivation of their federal rights. Albright v. Oliver,
510 U.S. 266, 271 (1994), reh’g denied, 510 U.S. 1215 (1994). To prevail on a § 1983
claim, “the plaintiff must show that (1) the defendant deprived the plaintiff of a right
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secured by the Constitution and laws of the United States, and (2) the defendant acted
under the color of state law.” J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 791 (7th Cir.
2003), cert. denied, 541 U.S. 975 (2004).
Godby argues that the Defendants violated his due process rights under the
Fourteenth Amendment to the United States Constitution. By failing to afford him an
“opportunity to comply with a rule in order to continue to enjoy his privilege of contact
visitation,” Godby contends that he was denied due process because he did not receive
adequate notice that his visitation privileges would be permanently restricted based upon
his three tobacco-use violations. (Appellant’s Br. p. 7). Godby also alleges that changes
to the Offender Visitation Policy were not posted inside his housing unit, thereby
depriving him of notice of the sanctions applicable to his conduct.2
Godby’s due process claim suffers from a number of infirmities and
misapprehensions. Most notable is his confusion of notice of prohibited conduct with
notice of sanctions. A basic element of due process is notice of what conduct is
prohibited. See Grayned v. Rockford, 408 U.S. 104, 108 (1972). A prisoner’s right to
notice means that the rules must give a person of ordinary intelligence notice of the
actions prohibited. See Adams v. Gunnell, 729 F.2d 362, 368-70 (5th Cir. 1984). While
2
Godby’s § 1983 complaint also alleged due process violations under the Indiana Constitution. However, Section
1983 actions cannot be used to enforce state constitutional rights. J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793
(7th Cir. 2003), cert. denied, 541 U.S. 975 (2004). Furthermore, Godby makes no argument on appeal that his due
process rights under the Indiana Constitution were violated. Consequently, we decline to address Godby’s claims
under the Indiana Constitution. Godby also argues that the Defendants violated his equal protection rights under the
Fourteenth Amendment by not posting amendments to the Offender Visitation Policy in his housing unit. Because
Godby did not raise this claim below, it is waived on appeal. See West Bend Mut. Ins. Co. v. 1st Choice Ins.
Services, 918 N.E.2d 684, 689 (Ind. Ct. App. 2009), trans. denied.
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Godby has due process rights to notice as to general categories of the acts prohibited, he
has no due process right to notice of the sanction he might face for his violation. See
Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Godby makes no claim that his
disciplinary proceedings failed to comport with due process. Consequently, he received
all process that was due.
Even if there were a cognizable due process claim, Godby has not shown a
genuine issue of material fact. The record before us clearly shows that Godby had notice
that his conduct may result in a restriction of visitation privileges. The 2007 version of
the Offender Visitation Policy, in effect at the time of Godby’s ADP Code B-245
violation, provided that a first violation may result in a six month no-contact visitation
restriction. Godby admits that he received a six month restriction following his ADP
Code B-245 violation in 2007. The 2009 Visitation Regulations were in effect on
January 20, 2010, when Godby violated ADP Code C-305. This was his second tobacco-
related offense and he received a twelve month no-contact visitation restriction. In his
second formal grievance, Godby acknowledged familiarity with visitation restrictions,
stating that “I was aware of it on 3-17-10 because of the first suspention [sic].”
(Appellant’s App. p. 20). Not less than one month later, Godby committed a second
ADP Code C-305 offense, his third tobacco-related offense, and the no-contact restriction
was made permanent. The Defendants submitted an affidavit from a WVCF official
regarding the availability of all policies in the WVCF law library. Godby admitted that
he had access to the law library and therefore to all applicable policies. In sum, we agree
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with the trial court that there are no genuine issues of material fact and the Defendants
were entitled to judgment as a matter of law. Accordingly, the trial court properly
granted the Defendants’ motion for summary judgment.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly granted summary
judgment in favor of the Defendants.
Affirmed.
KIRSCH, J. and ROBB, C. J. concur
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