Davis-Stone v. Edwards et al

Filing 5

ORDER of Partial Dismissal. (Nguyen (Sgt.), W. Bridges (Hearings Investigator) and G. Kelly (Lt.) are Terminated.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LEPORIAN DAVIS-STONE, # 579923,
Petitioner,

Case Number: 20-CV-11529
Honorable Thomas L. Ludington

v.
L. EDWARDS, ET AL.,
Respondent.
____________________________________/
ORDER OF PARTIAL DISMISSAL
This matter is pending before the Court on a pro se civil rights complaint filed by Leporian
Davis-Stone (“Plaintiff”) under 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the Macomb
Correctional Facility in Lenox Township, Michigan. Plaintiff names four defendants: Corrections
Officer L. Edwards, Sergeant Nguyen, Lieutenant G. Kelly, and Hearings Investigator W. Bridges.
Plaintiff’s complaint raises alleged violations of the First, Sixth, and Fourteenth
Amendments. He also raises a state law tort claim for the intentional infliction of emotional
distress. Plaintiff seeks monetary relief. For the reasons discussed, Defendants Nguyen, Kelly, and
Bridges will be dismissed. This dismissal is without prejudice as to Plaintiff’s state law tort claim
against these Defendants.
I.
Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a short and plain
statement of the claim showing that the pleader is entitled to relief,” as well as “a demand for the
relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P.
8(a)(2)).
To state a federal civil rights claim, a plaintiff must allege that (1) he was deprived of a
right, privilege, or immunity secured by the federal Constitution or laws of the United States, and
(2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v. Brooks,
436 U.S. 149, 155–57 (1978). A pro se civil rights complaint is to be construed liberally. Haines
v. Kerner, 404 U.S. 519, 520–21 (1972).
Plaintiff has been granted leave to proceed without prepayment of the filing fee for this
action due to his indigence. ECF No. 3. Under the Prison Litigation Reform Act (“PLRA”), the
Court is required to sua sponte dismiss an in forma pauperis complaint before service on a
defendant if it determines that the action is frivolous or malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.
See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B).
II.
Plaintiff’s claims arise from a misconduct ticket issued by Defendant Edwards on January
5, 2020 while Plaintiff was incarcerated at the Macomb Correctional Facility. The misconduct
ticket charged Plaintiff with interfering with an administrative rule and using the prison’s
computerized mail system in violation of a loss-of-privileges sanction for unidentified misconduct.
ECF No. 1 at PageID.3. Plaintiff claims that Defendant Edwards issued this false misconduct ticket
in retaliation for Plaintiff objecting on a previous occasion when Edwards touched Plaintiff’s
buttocks and Plaintiff warned him that his action violated the Prison Rape Elimination Act. Id. at
3-4.

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Defendant Nguyen reviewed the misconduct report. Plaintiff requested that Nguyen review
the video surveillance tape from January 5, 2020 because it would show that Plaintiff was in his
cell at the time Edwards alleged he was improperly accessing the computer mail system. Id. at 3.
Nguyen declined to review the videotape, noting that Hearing Investigator W. Bridges would
investigate the facts. Id. Plaintiff asked Defendant Bridges to review the tape and provide a copy
for review by the Hearing Officer Defendant Kelly. Id.
The misconduct hearing was held on January 13, 2020. Plaintiff informed Defendant Kelly
that the misconduct report was fabricated by Edwards and motivated by retaliatory intent. Id. at 3–
4. Plaintiff asked Kelly to review the surveillance tape because it would prove his innocence. Id.
He also advised Kelly that Corrections Officer Beck could corroborate that Plaintiff was not in the
dayroom when the violation was said to have occurred. Id.at 4. Kelly found Plaintiff guilty and
stated that “the video was not available for reviewing.” Id.
III.
Plaintiff claims that Defendants’ actions violated his rights under the First, Sixth, and
Fourteenth Amendments in connection with a prison misconduct allegation and the related hearing.
Plaintiff also raises a state law claim of intentional infliction of emotional distress.
A.
A prison disciplinary action does not implicate a liberty interest requiring due process
safeguards unless the punishment imposed will inevitably affect the duration of an inmate’s
sentence or inflict an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiff does not allege that
the disciplinary action resulted in a punishment that will affect the duration of his sentence or

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inflicts an “atypical and significant hardship” on him. Id. Because Plaintiff does not allege that the
misconduct conviction resulted in either an extension of the duration of his sentence or some other
atypical hardship, his due process claim fails.
In addition, even assuming that Plaintiff was entitled to limited due process, he fails to state
a claim. First, Plaintiff argues that Defendants violated due process by denying him the right to
confront witnesses. A prisoner’s right to call witnesses at a prison disciplinary proceeding does
not encompass the right to confront and cross-examine adverse witnesses. Wolff v. McDonnell,
418 U.S. 539, 568 (1974) (“[T]he Constitution should not be read to impose the [crossexamination] procedure at the present time and . . . adequate bases for decision in prison
disciplinary cases can be arrived at without cross-examination.”).
Second, Plaintiff’s claim that Defendant Kelly failed to view the videotape, which Plaintiff
claimed would have been exculpatory, fails to state a due process violation. There is no due process
requirement that a prison disciplinary board consider all available evidence. See Superintendent,
Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455–56 (1985). There is
also no specific requirement that a hearings officer review video surveillance evidence. See Harvey
v. Wilson, 2011 WL 1740141, at *10 (E.D. Ky. May 5, 2011) (holding that the failure to review
video footage as part of a disciplinary proceeding does not constitute a due process violation unless
the decision was not supported by “some evidence”); see also McKeithan v. Beard, 322 F. App’x
194, 201 (3d Cir. 2009) (“The videotape and photographs at most constitute potentially
exculpatory evidence, which prison officials have no constitutional obligation to preserve or
consider.”). Plaintiff fails to show a due process violation.

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B.
Plaintiff also claims that Defendants acted in retaliation for a previous interaction when
Plaintiff objected to Defendant Edwards touching his buttocks and warned Edwards that his actions
violated PREA policy.
Retaliation against a prisoner for engaging in protected conduct violates the First
Amendment. See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999). A retaliation claim has
three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing to engage in
that conduct; and (3) there was a causal connection between elements one and two, i.e., the adverse
action was motivated, at least in part, by the plaintiff’s protected conduct. Id. at 394. The plaintiff
bears the burden of proof on all three elements. See Mt. Healthy, 429 U.S. at 287; Smith v.
Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001).
Plaintiff fails to satisfy his burden with respect to Defendants Nguyen, Kelly and Bridges.
He does not allege that any of these three Defendants were even aware of the incident with
Edwards. Nor does he present any supporting detail. Plaintiff’s speculation is insufficient to state
a plausible retaliation claim under § 1983. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements” are insufficient to state a
claim).
C.
Plaintiff also raises state law intentional infliction of emotional distress claims against all
four Defendants. In determining whether to retain supplemental jurisdiction over state law claims,
“[a] district court should consider the interests of judicial economy and the avoidance of

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multiplicity of litigation and balance those interests against needlessly deciding state law issues.”
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). Where a district court
has exercised jurisdiction over a state law claim solely by virtue of supplemental jurisdiction, and
the federal claims are dismissed prior to trial, “the balance of considerations usually will point to
dismissing the state law claims.” Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010)
(quotation omitted). Here, because Plaintiff’s federal claims against Defendants Nguyen, Kelly,
and Bridges will be dismissed, supplemental jurisdiction with regard to Plaintiff’s state law claims
against these defendants should not be exercised. The state law claims against Defendants Nguyen,
Kelly, Bridges will be dismissed without prejudice.
IV.
Accordingly, it is ORDERED that Defendants Nguyen, G. Kelly, and W. Bridges are
DISMISSED. The dismissal is WITH PREJUDICE as to Plaintiff’s First, Sixth, and Fourteenth
claims against these Defendants. The dismissal with respect to the state law intentional infliction
of emotional distress claims against Defendants Nguyen, Kelly, and Bridges, is WITHOUT
PREJUDICE because the Court declines to exercise supplemental jurisdiction. Plaintiff’s claims
may proceed against Defendant L. Edwards.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: August 28, 2020

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon Leporian Davis-Stone #579923, MACOMB CORRECTIONAL
FACILITY, 34625 26 MILE ROAD, NEW HAVEN, MI 48048 by first
class U.S. mail on August 28, 2020.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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