This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1851

 

Ronaldo S. Ligons,

Appellant,

 

vs.

 

Dean Hagen, et al.,

Respondents.

 

Filed September 6, 2005

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. C3-04-5363

 

Ronaldo S. Ligons, #171203, Minnesota Correctional Facility-Stillwater, 970 Pickett Street, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, Mark B. Levinger, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondents)

 

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s order granting summary judgment for respondents, arguing that (1) disciplinary sanctions imposed against him violate the Eighth Amendment’s prohibition on cruel and unusual punishment, (2) the sanctions are in retaliation for exercising his right of access to the courts, (3) he has been denied due process, and (4) a prior lawsuit does not bar his claim for relief.  We agree that appellant is not estopped from pursuing his present cause of action, but because appellant has not raised a genuine fact issue regarding retaliation, the imposition of informal sanctions do not raise a liberty issue, and appellant has not demonstrated that respondents were deliberately indifferent to his health or safety, we affirm.

FACTS

Pro se appellant Ronaldo S. Ligons is a prisoner at Minnesota Correctional Facility–Stillwater (MCF-STW).  The events complained of in this action occurred while appellant was a prisoner at Minnesota Correctional Facility–Oak Park Heights (MCF-OPH). 

Appellant contends that while he was at MCF-OPH, several of the respondents, Sergeant Dean Hagen, and Officers Brenda Rivers, Michael Pantera, and Jeff Vars, “wrote false report(s) in a campaign of harassment” against appellant.  He further contends that, as a result of these reports, he was subjected to the “informal sanctions” of loss of privileges without due process and denied his “constitutional right of out[‑]of[‑]cell exercise.” 

According to respondents, appellant was in the segregation unit at MCF-OPH “during the entire period in 2004 when he was at that institution.”  Respondents further note that appellant had committed “disciplinary infractions” before arriving at MCF-OPH resulting in “segregation sentences up to March 29, 2004,”[1] and that he “also accumulated numerous incidences of informal discipline while in the segregation unit.”  Respondents note that, unlike formal discipline, informal sanctions “result[] in a loss of privileges, but no additional time in segregation or in incarceration.”  In addition, Mark Ehlenz, a lieutenant at MCF-OPH, stated in an affidavit that “on two different occasions” during appellant’s time in segregation, appellant’s

segregation sentences had expired, which meant that [appellant] was about to leave segregation and join the general population in the facility.  In each case, [appellant] refused to leave the segregation unit, actually disobeying a direct order to leave the segregation unit, thereby committing additional disciplinary infractions which required (or permitted) [appellant] to remain in the segregation unit. 

 

Nothing in the record indicates that appellant disputes this account.

            Kathy Reid, the health-services administrator at MCF-OPH, acknowledged in an affidavit that, due to his loss of privileges, appellant “did have less opportunity than other inmates in segregation to exercise outside his cell.”  But she also stated that the cells are of ample size to allow exercise and that other inmates often exercise in their cells, in addition to engaging in out-of-cell exercise, to keep themselves in shape.  Once again, there is nothing in the record indicating that appellant disputes this claim.

Appellant filed suit under 42 U.S.C. § 1983, alleging that he had “suffered 102 days loss of privileges . . . in a campaign of harassment resulting in headaches, nerve damage in legs [and] feet (diabetic) with threats to eyes, heart, kidneys, etc., [and] stomach and bowel upsets.”  He further alleged that this loss of privileges occurred after respondents wrote false reports in “retaliation for exercis[ing his] right of grievance.”  He argued that the actions of respondents violated both his right to due process under the Fourteenth Amendment and the Eighth Amendment’s prohibition on cruel and unusual punishment and sought both damages and injunctive relief.[2]   

Respondents moved to dismiss appellant’s complaint as frivolous or malicious, and the district court granted respondents’ motion pursuant to Minn. Stat. § 563.02, subd. 3 (2004).[3]  This appeal follows.

D E C I S I O N

I.          Mootness

As a preliminary issue, we address the question of mootness.  Appellant is no longer housed at the same correctional facility at which the actions complained of occurred.  This raises the question of whether appellant’s claim is moot.  The determination of whether a cause of action is moot presents a question of law.  See Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn. App. 2004) (stating that “[t]he issue of whether a cause of action is moot is a legal issue, which we review de novo”), review denied (Minn. Apr. 4, 2005). 

Generally, a case becomes moot “‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’”  United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951 (1969)); see also State v. Rud, 359 N.W.2d 573, 576 (Minn. 1984) (stating that “[o]rdinarily when a dispute . . . is settled or in some other way resolved during the pendency of an appeal, we dismiss the appeal as moot”).  Appellant’s transfer renders moot his claim for injunctive relief, however he retains his standing to bring his damages claim.[4]  Compare Boag v. MacDougall, 454 U.S. 364, 364, 102 S. Ct. 700, 701 (1982) (reversing and remanding the circuit court’s affirmance of the district court’s decision dismissing prisoner’s petition for mootness and noting that the transfer of a prisoner to another facility “did not moot [his] damages claim”), with Preiser v. Newkirk, 422 U.S. 395, 402-03, 95 S. Ct. 2330, 2334-35 (1975) (dismissing prisoner’s claim for injunctive relief as moot when he had been transferred to a different facility before the district court’s ruling, no adverse action had been taken against him since the transfer, the case was not a class action, and the prisoner had sought no damages); see also Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (prisoner’s transfer to another facility rendered his claim for injunctive relief moot, but did not render his claim for monetary damages brought under 42 U.S.C. § 1983 moot).

II.        Dismissal of Claim

To apply the correct standard of review, we must address the procedural posture of the case.  The district court based its order dismissing appellant’s complaint on Minn. Stat. § 563.02, subd. 3 (2004).  Pursuant to this statute, an action brought by an inmate in forma pauperis “shall be dismissed with prejudice if it is frivolous or malicious.”  Minn. Stat. § 563.02, subd. 3(a).  The statute further provides

In determining whether an action is frivolous or malicious, the court may consider whether:

 

(1) the claim has no arguable basis in law or fact; or

 

(2) the claim is substantially similar to a previous claim that was brought against the same party, arises from the same operative facts, and in which there was an action that operated as an adjudication on the merits.

 

Minn. Stat. § 563.02, subd. 3(b).  The district court has broad discretion in allowing in forma pauperis proceedings and will not be reversed absent an abuse of discretion.  Maddox v. Dep’t of Human Servs., 400 N.W.2d 136, 139 (Minn. App. 1987).

In dismissing appellant’s claims, the district court went beyond the pleadings, considering both a previous case involving appellant and affidavits submitted by respondents in support of their motion to dismiss.  When a district court has considered matters outside the pleadings, we review the district court’s dismissal under the summary-judgment standard.[5] Wallin v. Minn. Dep’t of Corr., 598 N.W.2d 393, 399 (Minn. App. 1999), review denied (Minn. Oct. 21, 1999).  In a summary-judgment appeal, we determine if there are any genuine issues of material fact and if the district court erred in construing the applicable law.  St. Louis Park Post No. 5632 v. City of St. Louis Park, 687 N.W.2d 405, 407 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).  Appellate courts also view the evidence in the light most favorable to the party against whom summary judgment was granted.  Westrom v. Minn. Dep’t of Labor & Indus., 686 N.W.2d 27, 32 (Minn. 2004).

To establish a cause of action under 42 U.S.C. § 1983 (2000), appellant must show that he was deprived of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States.  Gomez v. Toledo, 446 U.S. 635, 638-39, 100 S. Ct. 1920, 1922-23 (1980).  Appellant alleges that respondents denied his right to due process under the Fourteenth Amendment and violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

A.       Due Process

Appellant first argues that the district court erred in dismissing his due-process claim.  In his complaint, appellant alleged that respondents wrote “false reports”[6] leading to the imposition of informal sanctions in violation of his right to due process.  The district court, citing Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995), concluded that the imposition of informal sanctions did not implicate a liberty interest and that appellant’s due-process rights were not violated. 

As an initial matter, we note that appellant’s claim that he was subjected to the complained-of discipline in retaliation for exercising his right of access to the courts states, in and of itself, a valid cause of action under section 1983.  See Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990) (noting that “an act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for a different reason, would have been proper”).  Although not specifically pled, his complaint thus raises a claim that respondents violated his First Amendment rights by retaliating against him for exercising his right to petition for redress of grievances.  See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (noting that retaliation claims implicate First Amendment rights); Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986) (per curiam) (otherwise constitutional actions, when taken in retaliation for filing lawsuits, violate inmate’s right of access to courts and First Amendment rights). 

But as the Ninth Circuit has noted:

Because a prisoner’s First Amendment rights are necessarily curtailed, . . . a successful retaliation claim requires a finding that the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.  The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.

 

Pratt, 65 F.3d at 806 (quotation and citation omitted).  Here, plaintiff simply makes conclusory allegations of harassment and retaliation.  Thus, he has not presented a genuine fact issue regarding his retaliation claim, and the district court did not err in granting summary judgment.  Contra Madewell, 909 F.2d at 1206 (reversing the district court’s grant of summary judgment when the parties submitted competing affidavits addressing the issue of retaliation and the district court could resolve the dispute only by making a credibility determination).

We now turn to appellant’s due-process claim.  Procedural due-process requirements apply only to the deprivation of liberty and property interests protected by the Fourteenth Amendment to the Constitution.  Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972).  “Liberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the [s]tates.”  State ex rel. McMaster v. Young, 476 N.W.2d 670, 672 (Minn. App. 1991) (quoting Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 868-69 (1983)), review denied (Minn. Dec. 13, 1991).  But due-process protections do not extend to “every change in the conditions of confinement” that adversely affects prisoners.  Sandin, 515 U.S. at 478, 115 S. Ct. at 2297.  Where the interests asserted are not protected “by the Due Process Clause of its own force,” they constitute liberty interests subject to the protections of the Due Process Clause, only when they “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”  Id. at 484, 115 S. Ct. at 2300. 

The Sandin court noted that although

prisoners do not shed all constitutional rights at the prison gate, . . . “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”  Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.

 

Id. at 485, 115 S. Ct. at 2301 (quotation and citations omitted) (alteration in original).  The Court then held that 30 days’ disciplinary segregated confinement “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.”  Id. at 486, 115 S. Ct. at 2301.

The Eighth Circuit has likewise held that there is “no liberty interest in avoiding administrative segregation unless the conditions of . . . confinement present . . . atypical, significant deprivation.”  Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (quotation omitted).  In so holding, the court noted that the record contained nothing to suggest that the conditions of the plaintiff’s segregation were “atypical” of ordinary conditions of confinement.  Id.

Similarly, there is nothing in the record here to indicate that the conditions of appellant’s segregation were atypical.  Thus, he had no protected liberty interest in avoiding such segregation or in maintaining privileges during segregation.  Id.; see also Ingram v. Jewell, 94 Fed. Appx. 271, 272 (6th Cir. 2004) (holding that sanctions imposed on state inmate, including a 14-day loss of privileges, did not deprive inmate of liberty interest protected by due process because such sanctions neither extended duration of his sentence nor imposed atypical, significant deprivation).  Because no protected liberty interest was implicated, there was no due-process violation.  Consequently, the district court did not err in dismissing appellant’s complaint on this issue.

B.       Cruel and Unusual Punishment

Appellant also contends the district court erred in dismissing his Eighth Amendment claim.  We begin by addressing the issue of collateral estoppel.  Citing Ligons v. Ramstad-Hvass, No. C2-01-774, 2002 WL 15703 (Minn. App. Jan. 8, 2002) (Ligons I), respondents argue that the district court properly dismissed appellant’s claim because it “had already been litigated adversely to [a]ppellant.” 

In Ligons I, appellant, who was at the time incarcerated at MCF-STW, filed suit alleging, in part, that “respondents’ actions in refusing to exempt him from a ‘no work, no play’ policy, under which all nonexempt inmates who refuse[d] to work [were] confined to their cells for 23 hours per day,” violated the Eighth Amendment’s prohibition on cruel and unusual punishment.  Id. at *1.  We affirmed the grant of summary judgment to respondents, holding that the district court did not err in concluding that appellant’s “23 hour per day lockup” did not constitute cruel and unusual punishment.  Id. at *3.  We stated:

Christopher Ceman, M.D., a physician at MCF-STW who has examined and treated appellant many times, submitted an affidavit that states, in part: “[t]here is no medical reason why [appellant] cannot work” and “[a]s I have told [him] on numerous occasions, work would be good for him because the physical activity of work would provide him with an opportunity to exercise, which would help control his diabetes.”  Dr. Ceman further stated that if appellant “continues to refuse to work” and is confined to his cell for 23 hours per day, he still “has an opportunity to obtain the necessary physical activity during his one hour of free time per day and throughout the day by doing various exercises within his cell.”

 

. . . .

 

Appellant claims that the 23-hour confinement prevents him from exercising and exacerbates his diabetes.  As Dr. Ceman noted, however, only appellant’s refusal to work prevents him from enjoying outdoor privileges and nothing prevents appellant from exercising in his cell.  When, as here, the medical records indicate that treatment was provided, and physician affidavits state that the care provided was adequate or reasonable, an inmate “cannot create a question of fact by merely stating that [he] did not feel [he] received adequate care.”

 

Id. at *2,*4.

Whether collateral estoppel precludes litigation of an issue is a mixed question of law and fact that we review de novo.  Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 446 (Minn. 2000).  Collateral estoppel “precludes parties from relitigating issues which are identical to issues previously litigated and which were necessary and essential to the former resulting judgment.”  Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996) (quotation omitted).  For collateral estoppel to apply, all of the following elements must be met:

1) the issue must be identical to one in a prior adjudication; 2) there was a final judgment on the merits; 3) the estopped party was a party or was in privity with a party to the prior adjudication; and 4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

 

Care Inst., 612 N.W.2d at 448.

Here, we focus on the first element—whether the issue litigated is identical with the issue litigated in the prior adjudication.  In Ligons I, we addressed the issue of appellant’s confinement to his cell for 23 hours per day.  2002 WL 15703, at *2,*4.  In this case, appellant argues that “[t]his litigation involves 24[-]hour lock-up and a complete denial of out[-]of[-]cell exercise.”  Although this distinction is not readily apparent from appellant’s complaint, we recognize that pro se pleadings are to be liberally construed.  See State ex rel. Farrington v. Rigg, 259 Minn. 483, 483, 107 N.W.2d 841, 841-42 (1961) (noting that “great liberality” is extended to pro se pleadings).  For that reason, appellant’s claim is not identical with that litigated in Ligons I and he is not collaterally estopped from litigating his Eighth Amendment claim in this case.

The Eighth Circuit has recently discussed the requirements for maintaining an action for violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.

To sustain [a] claim [for violation of Eighth Amendment rights], [plaintiff] needs to show unnecessary and wanton infliction of pain, as well as a deprivation denying the minimal civilized measure of life’s necessities.  [Plaintiff] must also show that the defendants were deliberately indifferent to his health or safety and that they acted maliciously for the purpose of causing him harm.

 

Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (quotations and citations omitted).  “In considering an alleged deprivation of adequate exercise, courts must consider several factors including: (1) the opportunity to be out of the cell; (2) the availability of recreation within the cell; (3) the size of the cell; and (4) the duration of confinement.”  Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992).  “[L]ack of exercise may be a constitutional violation if one’s muscles are allowed to atrophy or if an inmate’s health is threatened.”  Id. 

In Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001), the Seventh Circuit upheld a “90-day threshold for considering a denial of out-of-cell exercise opportunities a possible violation of the cruel and unusual punishments clause” and concluded that “a denial of yard privileges for no more than 90 days at a stretch is not cruel and unusual punishment.”  Here, appellant alleges that he was denied out-of-cell exercise for “102 days.”  But appellant does not deny that on “two different occasions” he “refused to leave the segregation unit” upon the expiration of his segregation sentences.  Neither does appellant deny respondents’ contention that he could have exercised in his cell.  Thus, any ill effects arising from lack of exercise stem, at least in part, from appellant’s own actions.  On this record, the district court did not err in dismissing appellant’s complaint.  Cf. Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996) (affirming district court’s ruling in favor of defendant where prisoner did not make use of the exercise opportunities provided to him); Wishon, 978 F.2d at 449 (noting that prisoner did not use all of the recreation time available to him and had the opportunity to exercise in his cell).

Moreover, to prevail on his Eighth Amendment claim, appellant must also prove that respondents were deliberately indifferent to his health and safety.  Phillips, 320 F.3d at 848.  To show “deliberate indifference,” appellant must demonstrate that “[prison] official[s] kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official[s] must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and [they] must also [have] draw[n] the inference.”  Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994) (noting that the Eighth Amendment outlaws cruel and unusual punishments, not cruel and unusual conditions); cf. Dulaney v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (stating that to demonstrate “deliberate indifference” to medical needs, an inmate must prove that “the prison officials actually knew of but deliberately disregarded those needs”).  “[A]n inmate cannot create a question of fact by merely stating that [he] did not feel [he] receive[d] adequate treatment.”  Dulaney, 132 F.3d at 1240.  Nor is an inmate’s own disagreement with treatment he receives sufficient to create a question of deliberate indifference.  Id. at 1241.

Here, respondents have submitted medical records demonstrating that appellant received medical attention on a regular basis.  Appellant was seen by a physician approximately once a month and by a nurse “on a daily basis because [appellant] needed insulin injections and frequent monitoring.”  The record also indicates that appellant’s concerns regarding his diabetes were addressed and that he was told that “there was enough space in his room to provide the exercise [he] needed.”  Appellant has offered no evidence tending to show that his care was not adequate or that prison officials were deliberately indifferent to appellant’s condition.  On this record, appellant cannot demonstrate that respondents “disregard[ed] an excessive risk to inmate health or safety.”  Farmer, 511 U.S. at 837, 114 S. Ct. at 1979.  Accordingly, the district court did not err in dismissing appellant’s complaint.

            Affirmed.



[1] Respondents affirm that appellant was entitled to a disciplinary hearing on each of the formal disciplinary charges.  Appellant does not contend that he was denied due process with respect to these formal charges.

[2] In his complaint, appellant also alleged an equal-protection violation.  He has not raised this issue on appeal, and it is, therefore, waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).

[3] Minn. Stat. § 563.02, subd. 3(a), provides that an action brought by an inmate in forma pauperis “shall be dismissed with prejudice if it is frivolous or malicious.”   

[4] In his brief, appellant states that “[t]his case was filed as a class action,” but no class has been certified in this case, nor has appellant moved for such certification.  We also note that although the district court has the authority to certify a class action sua sponte, this has not happened in this case.  See In re Fed. Skywalk Cases, 680 F.2d 1175, 1188 (8th Cir. 1982) (Heaney, J., dissenting) (noting that a court may “elect to certify a class and select a class representative even if no party seeks a class action” and citing relevant cases).  Accordingly, the present case is not properly a class action.  See Baxter v. Palmigiano, 425 U.S. 308, 310 n.1, 96 S. Ct. 1551, 1554 n.1 (1976) (noting that “[w]ithout [class] certification and identification of the class, [an] action is not properly a class action”).

[5] We note that where, as here, the dismissal is based on section 563.02, the statute specifically authorizes the district court to consider whether the claim is substantially similar to a previous adjudication on the merits.  Minn. Stat. § 563.02, subd. 3(b)(2).  Thus, consideration of a previous case does not alter the procedural posture.  But here, in addition to appellant’s prior case, the district court considered affidavits submitted by the respondents.  Accordingly, the district court’s dismissal is properly considered as a grant of summary judgment for respondents.

[6] Appellant also argues that the district court erred in dismissing his “charge[s]” against respondents for violation of Minn. Stat. § 609.43 (2004).  But section 609.43 is part of the criminal code.  It is well settled that a private citizen may not commence and maintain private prosecutions for alleged violations of the criminal law.  State ex rel. Wild v. Otis, 257 N.W.2d 361, 364-65 (Minn. 1977).  Accordingly, the district court did not err in implicitly dismissing these “charges.”