Dickerson v. Pemberton
Filing
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OPINION and ORDER of Summary Dismissal, And Concluding that an Appeal Cannot be Taken in Good Faith. Signed by District Judge Robert H. Cleland. (CGre)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIK DICKERSON,
Plaintiff,
v.
Case No. 11-11878
D. PEMBERTON,
Defendant.
/
OPINION AND ORDER OF SUMMARY DISMISSAL,
AND CONCLUDING THAT AN APPEAL CANNOT BE TAKEN IN GOOD FAITH
Plaintiff Erik Dickerson is a state prisoner at Mound Correctional Facility in
Detroit, Michigan. He has filed a pro se civil rights complaint against Defendant D.
Pemberton, who is a hearings investigator for the Michigan Department of Corrections.
The complaint will be dismissed under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for
failing to state a claim on which relief may be granted.
I. BACKGROUND
The complaint alleges that, in 2009, Plaintiff and three other inmates were
charged with assaulting an inmate in the kitchen at the Egeler Reception and Guidance
Center in Jackson, Michigan. At a hearing on the charge, Plaintiff claimed that two
other prisoners committed the assault and that he never entered the room, but walked
away with another prisoner. Plaintiff was found guilty of the charge and punished with
seven days top lock, thirty days loss of privileges, and 180 days loss of good-time
credits. In addition, the Michigan Parole Board cited the misconduct as a reason for
declining to release Plaintiff on parole.
Plaintiff alleges in his complaint that Defendant Pemberton withheld exculpatory
evidence that Plaintiff could have used to prove he was innocent of the misconduct
charge. The evidence in question was a food service supervisor’s critical incident
report, which allegedly did not name any confidential witnesses, nor identify Plaintiff as
the person who struck the victim with a stick. Although the report was read to Plaintiff
during the hearing on the misconduct charge, he claims that the hearing officer
fabricated the report. He seeks money damages and a judgment declaring that
Defendant violated his constitutional right to due process.
II. STANDARD
Plaintiff has been permitted to proceed without prepayment of the fees and costs
for this action. The court may dismiss an indigent prisoner’s civil rights complaint if the
complaint (1) is frivolous, malicious, or fails to state a claim on which relief may be
granted, or (2) seeks monetary relief from a defendant who is immune from such relief.
Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001) (citing 28 U.S.C. §§ 1915(e)(2)
and 1915A). A complaint is frivolous if it lacks an arguable basis in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
“To state a claim under § 1983, a plaintiff must set forth facts that, when
construed favorably, establish: 1) the deprivation of a right secured by the Constitution
or laws of the United States; 2) [that the deprivation was] caused by a person acting
under the color of state law.” Harris v. City of Circleville, 583 F.3d 356, 364 (6th Cir.
2009) (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009)).
While a complaint need not contain “detailed factual allegations,” a plaintiff’s obligation
to provide grounds entitling him to relief “requires more than labels and conclusions,
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and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555-56
(citations and footnote omitted). Conclusory statements will not suffice. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). “So, to survive scrutiny under §§ 1915A(b)(1) and
1915(e)(2)(B)(ii), ‘a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Hill v. Lappin, 630 F.3d 468, 471 (6th
Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949).
III. DISCUSSION
The facts set forth in Plaintiff’s complaint do not state a claim on which relief may
be granted, because accepting those facts as true, Plaintiff’s right to due process was
not violated. Due process in prison disciplinary proceedings includes the right to: (1)
written notice of the charges at least twenty-four hours before the disciplinary hearing;
(2) a written statement of the evidence relied on and the reasons for the disciplinary
action; and (3) an opportunity to call witnesses and present documentary evidence.
Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974). In addition, there must be “some
evidence” supporting the decision to revoke good-time credits. Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).
Exhibits to the complaint indicate that Plaintiff received notice of the misconduct
hearing more than twenty-four hours before the hearing. He was given a copy of the
misconduct report, which listed the evidence relied upon and the reason for the
disciplinary action. He was also provided a hearing at which he could have called
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witnesses and presented documentary evidence. The food service supervisor’s critical
incident report was read to him at the hearing, although it was redacted to protect a
confidential witness. After the hearing, Plaintiff was given a copy of the hearing officer’s
report.
Plaintiff claims that the hearing officer fabricated the food service supervisor’s
report. The hearing officer, however, viewed a videotape of the assault and saw
nothing to convince the officer that Plaintiff was misidentified. The hearing officer also
noted that none of the other prisoners involved in the assault had said anything that
exonerated Plaintiff. Furthermore, the hearing officer relied on other evidence besides
the food service supervisor’s report, namely, the report of the correctional officer who
was assigned to the kitchen and who wrote the misconduct report. That officer viewed
the videotape of the assault and identified Plaintiff as the person who struck the victim
numerous times with a mop or broom stick. Therefore there was “some evidence” to
support the hearing officer’s decision, and Plaintiff received all the due process to which
he was entitled.
IV. CONCLUSION
Plaintiff’s allegations fail to state a claim on which relief may be granted.
Accordingly,
IT IS ORDERED that the complaint [Dkt. # 1] is summarily DISMISSED pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
For the reasons stated in this order, the court finds that an appeal in this case
could not be taken in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States,
369 U.S. 438, 445 (1962); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir.
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1997). Therefore, Plaintiff is not certified to pursue an appeal from this judgment in
forma pauperis. 28 U.S.C. § 1915(a)(3).
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 11, 2011
I hereby certify that a copy of the foregoing document was mailed to plaintiff Erik
Dickerson, #202117, Mound Correctional Facility, Detroit, MI 48212, on this date, May
11, 2011, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\11-11878.DICKERSON.Dismissal1983.bh.jmp.wpd
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