Ayotte v. Stemen et al
ORDER adopting in part 48 Report and Recommendation; granting in part 20 Motion for Summary Judgment; denying as moot 25 Motion to Take Judicial Notice. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-13826
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
B. STEMEN, ET. AL.,
U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION ; GRANTING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ; DENYING AS MOOT
PLAINTIFF’S MOTION TO TAKE JUDICIAL NOTICE 
Plaintiff filed the instant prisoner civil rights action on October 26, 2015. On
December 22, 2015, Defendants filed a Motion for Summary Judgment . Plaintiff
filed a response and an affidavit on January 26, 2016 [24; 26]. Plaintiff also filed a
Motion for Judicial Notice on January 26, 2016  in relation to the pending Motion
for Summary Judgment. On August 11, 2016, the Magistrate Judge issued a Report
and Recommendation (R&R) , recommending that Defendants’ Motion for
Summary Judgment be granted in part and denied in part, without prejudice; the effect
of this recommendation would dismiss all claims except the claim against Defendants
Visconti and Bridges that alleges retaliation under the First Amendment pending
potential further consideration after a full development of the record relating to
exhaustion of that claim. Plaintiff filed objections to the R&R on August 26, 2016 and
August 29, 2016 [49; 50].1 The Government did not file a response to these objections
and did not file an objection to the R&R.
For the reasons stated below, the R&R  is ADOPTED in part and the
Motion for Summary Judgment  is GRANTED in part and DENIED in part.
With the entry of this Order, Plaintiff’s Motion for Judicial Notice  is DENIED as
moot. The impact of this instant Order is that all claims are dismissed2 except
Plaintiff’s claims against Defendants Visconti and Bridges for alleged retaliation
under the First Amendment in issuing a false misconduct ticket and Defendants
Stemen, Benson and Neuberger for alleged conspiracy to falsify a misconduct ticket
pending potential further consideration after a full development of the record relating
to exhaustion of those claims as explained below.
STATEMENT OF FACTS
The Magistrate Judge summarized the factual background of the complaint as
These objections are identical, aside from an exhibit attached to the objections
filed on August 29, 2016. Therefore, when Plaintiff’s objections are referred to in
this Order, the Court is referencing the objections filed on August 29, 2016 .
The Court notes that Defendants Singleton and Benson have not been served and
the claims against them are not addressed in the pending Motion for Summary
Judgment or the R&R. The conclusions in this order apply equally to both
Defendants. All claims against Singleton should be dismissed. However,
Defendant Benson remains a party in the case because there is a claim that Benson
conspired to falsify a misconduct ticket. Thus, Defendant Benson remains a party
in the case pending a decision by the Magistrate concerning the Order for Plaintiff
to Provide Correct Address for Defendant Benson , to which Plaintiff
responded with a request to the Court .
Plaintiff is a prisoner who is currently confined in the Michigan
Department of Corrections (“MDOC”) at the Macomb Correctional
Facility (MRF), New Haven, Michigan. Plaintiff’s complaint is filed
under 42 U.S.C. § 1983 and claims infringement of his civil rights,
alleging violations of the First, Fifth, Sixth and Fourteenth Amendments
of the United States Constitution.
MRF Defendants are Deputy Warden Darrell Steward, Corrections
Program Coordinator Maria Visconti, Hearings Investigator William
Bridges, Lieutenant Peter Neuberger, Sergeant Dale Hughes and
Corrections Officer (C/O) Brett Stemen. According to Ayotte, once he
was elected to the Warden’s Forum, he brought up issues concerning
food service in September of 2014. (Dkt. 1, ¶ 12). By November 2014,
he began receiving false work reports. (Dkt. 1, ¶ 16). On December 25,
2014, Ayotte was issued a Class II misconduct violation for possession
of stolen property after C/O Stemen discovered 20 hamburger patties in
Ayotte’s coat. Sergeant Hughes reviewed the violation with Ayotte.
(Dkt. 1, ¶ 29). Lieutenant Neuberger, acting as the Hearing Officer,
found Ayotte guilty of the misconduct on January 6, 2015. (Dkt. 1, ¶ 29).
Deputy Warden Steward denied Ayotte’s appeal. (Dkt. 1, ¶¶ 32-34).
And, on February 25, 2015, Warden Romanowski overturned the guilty
finding. (Dkt. 1, ¶ 37).3
In Count I, Ayotte alleges that C/O Stemen conspired with others to
falsify a misconduct violation. (Dkt. 1, ¶ 112). Next, he alleges that
Deputy Warden Steward conspired with others to confiscate or destroy
Ayotte’s “records” and falsify other records in retaliation for filing
grievances and being a member of the Warden’s Forum. (Dkt. 1, ¶113).
Ayotte further alleges that Corrections Program Coordinator Visconti
and Hearings Investigator Bridges retaliated against him for having
raised issues as a member of the Warden’s Forum. (Dkt. 1, ¶¶ 114, 115).
Finally, Ayotte alleges that Lieutenant Neuberger conspired with others
to falsify a misconduct violation and ultimately found him guilty of that
violation. (Dkt. 1,¶¶ 117 -118).
In Count II, Ayotte incorporates his prior allegations and asserts that the
defendants’ conduct violated his rights under the Fifth and Sixth
The record is not clear that plaintiff’s misconduct ticket was overturned. Plaintiff
says that it was, but Step II grievance response indicates that it was not overturned.
(Dkt. 20-3, Pg ID 214).
Amendments. In Count III, Ayotte incorporates his prior allegations and
asserts that defendants’ conduct violated his right to substantive due
process. In Count IV, Ayotte incorporates his prior allegations and
asserts that defendants’ conduct violated his right to procedural due
process. In Count V, Ayotte incorporates his prior allegations and asserts
that defendants acted with knowledge, encouragement and/or
collaboration with other defendants to violate his rights. In Count VI,
Ayotte incorporates his prior allegations and asserts that defendants
denied him a fair hearing in regards to his Class II misconduct violation,
thereby violating his rights under the First, Fifth and Sixth Amendments.
In Counts VII and VIII, Ayotte incorporates his prior allegations and
asserts that defendants conspired in violation of 42 U.S.C. § 1985. In
Count IX, Ayotte incorporates his prior allegations and asserts that
defendants’ conspiracy violated his rights under the
First, Fifth, Sixth and Fourteenth Amendments by depriving him of his
legal materials. Ayotte sues all defendants in their individual and official
capacities for unspecified monetary damages.
STANDARD OF REVIEW
This Court reviews objections to an R&R on a dispositive motion de novo. See
28 U.S.C. § 636(b)(1)(c). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). The moving party has the burden of establishing that there are no genuine
issues of material fact, which may be accomplished by demonstrating that the
nonmoving party lacks evidence to support an essential element of its case. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must construe the evidence, and
all reasonable inferences drawn therefrom, in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). A genuine issue for trial exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
“The PLRA provides that a prisoner may not bring an action under federal law
related to prison conditions ‘until such administrative remedies as are available are
exhausted.’” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (quoting 42 U.S.C.
§ 1997e(a)). “To exhaust his administrative remedies, a prisoner must adhere to the
institutional grievance policy, including any time limitations.” Id. (citing Woodford v.
Ngo, 548 U.S. 81, 90–91, (2006)). This requires “taking advantage of each step the
prison holds out for resolving the claim internally.” Troche v. Crabtree, --- F.3d ---,
2016 WL 736312, at *3 (6th Cir. Feb. 25, 2016) (quoting Reed–Bey v. Pramstaller,
603 F.3d 322, 324 (6th Cir. 2010)).
Failure to exhaust is an affirmative defense and the burden is on the Defendants
to show that a Plaintiff failed to exhaust when asserting exhaustion as an affirmative
defense. Jones v. Bock, 549 U.S. 199, 216-218 (2007). Defendants move for summary
judgment on the issue of whether Plaintiff failed to exhaust his administrative
remedies under the PLRA prior to commencing litigation.
1. REPORT AND RECOMMENDATION 
Non-grievable issues include “[d]ecisions made in minor misconduct hearings.”
PD..03.07.130(F)(4). Instead, to grieve decisions made in minor misconduct hearings,
a Plaintiff must file “a motion or application for rehearing in order to exhaust his or
her administrative remedies before seeking judicial review of the final decision or
order.” MCL §791.255(1). The rehearing request must be made within thirty days of
the final decision or order. MCL §791.254(3). Additionally, per Siggers v. Campbell,
a prisoner must raise the argument that a misconduct ticket was issued based
retaliation or conspiracy during the first misconduct hearing in order to properly
exhaust these claims. 652 F. 3d 681, 694 (6th Cir. 2011).4
While the Court agrees with the R&R that the claims against Defendants
Visconti and Bridges relating to the issue of retaliation based on the issuing of the
misconduct ticket should survive the Motion for Summary Judgment given the lack of
evidence by Defendants to meet their affirmative burden of exhaustion, the Court
declines to adopt the R&R in regards to the claims against Defendants Stemen and
Neuberger found in Count I. In Count I, Plaintiff alleges that Stemen and Neuberger
But see, Ragland v. City of St. Louis, 2012 WL 511827, *4 (E.D. Mich. 2012)
(“[W]hile it is true that Plaintiff cannot grieve the decision of an administrative
hearing officer, his Complaint allegation is that the underlying misconduct
charge—not the hearing officer’s decision—was retaliatory. Plaintiff could have
and was, therefore, required to grieve the alleged retaliatory misconduct charge.”)
(footnote omitted), citing Boyd v. Ray, 19 Fed.Appx. 209, 2001 WL 1042261 (6th
Cir. 2001) (where the plaintiff’s claim did not involve the administrative hearing
officer’s decision but rather an allegation that the underlying misconduct charge
was false, he was required to exhaust his administrative remedies). However, the
Sixth Circuit recently affirmed a decision where this Court determined that a
prisoner failed to exhaust a retaliation claim by failing to raise the issue during
the misconduct ticket hearing process. Carr v. Booker, 2014 WL 409026 (E.D.
Mich. Feb. 3, 2014), affirmed Carr v. Booker, Case No. 14-1258 (6th Cir. Dec. 4,
conspired to falsify a misconduct violation against Plaintiff. This, similar to the
retaliation claim, deals with the issuance of the misconduct ticket and thus, per
Siggers v. Campbell, should survive summary judgment because the Defendants have
not presented any evidence to what Plaintiff stated at the initial misconduct ticket
hearing. Without that evidence, the Court agrees with the Magistrate that the
exhaustion issue surrounding these claims cannot be dealt with because there is no
record as to whether Plaintiff actually exhausted his available administrative remedies
for his retaliation and conspiracy claims about the issuance of the misconduct ticket
during the proceedings.
However, the Court does agree with the R&R that the other claims have not
been exhausted. The single grievance filed by Plaintiff that was properly exhausted
does not name Defendants Singleton, Hughes or Steward nor can it be said to put
these Defendants on notice for the claims brought against them [20-3]. The sole
grievance also does not mention any conspiracy in his grievance, any violation of 42
U.S.C. § 1985, any retaliation unrelated to the misconduct ticket, any violation of the
Equal Protection Clause, any violation of the Sixth Amendment, any claim based on a
failure to disclose exculpatory evidence, or any claim relating to the destruction of
legal materials or the confiscation of files. These are all allegations that are not a part
of the decision made in the misconduct hearing because they do not impact the
validity of the underlying misconduct allegations and the issuance of the misconduct
ticket and thus, per the R&R, they were not properly exhausted in the one grievance
filed by Plaintiff to step III.
2. OBJECTIONS 
Plaintiff objects to the R&R on six grounds: (1) the administrative remedies
were correctly exhausted when he reported to the Warden’s Forum issues that affected
multiple prisoners, per P.D.03.07.130(F) and (F)(1); (2) the misconduct ticket was
fully exhausted because Plaintiff appealed it through to Warden Romanowski; (3)
Plaintiff is entitled to sue Defendants in both their official and individual capacities;
(4) Plaintiff exhausted claims as to all Defendants during the hearing process at his
appeal of his misconduct before Warden Romanowski; (5) Plaintiff was deprived of
his due process rights by Defendant Neuberger; (6) the affidavit submitted by
Defendant Stemen creates a question of material fact and this claim should not be
dismissed; and (7) the R&R did not address Plaintiff’s 1988 claim so it must be
allowed to go forward.
Objections one, two and four all hinge on an argument that all of Plaintiff’s
claims were exhausted properly because they were in fact non-grievable issues under
PD..03.07.130(F). Therefore, Plaintiff argues he properly exhausted these claims
when he appealed his misconduct violation to the Warden and alleged retaliation, and
all the other offenses complained of here. However, the Court agrees with Magistrate
on the exhaustion issue.
Plaintiff’s claims brought before the Court are not all claims that are nongrievable, therefore many of Plaintiff’s claims could only be properly raised through
the grievance process. Per PD.03.07.130(F), it is not permitted for “two or more
prisoners…[to] jointly file a single grievance regarding an issue of mutual impact or
submit identical grievances regarding a given issue as an organized protest.” The plain
language of part F of the policy causes the Court to overrule Plaintiff’s first objection.
Plaintiff’s objection is that he exhausted his claims under this policy because they
were non-grievable since the issue impacted other prisoners besides Plaintiff.
However, Plaintiff does not allege that he wished to file jointly or that other prisoners
were filing identical grievances simultaneously; therefore his claims are not
immediately non-grievable and objection one is overruled.
The Court rejects the second and forth objections because, as the Magistrate
stated in the R&R, there is a question of fact of what happened regarding Plaintiff’s
misconduct charge claims. Plaintiff argues that the Warden overturned the hearing
opinion that found him guilty, while the Step II grievance response indicates that it
was not overturned [20-3]. Because of the lack of factual detail regarding the
substance of the misconduct hearing in Defendants’ arguments and the conflicting
evidence as to the whether Plaintiff raised any claims of retaliation or conspiracy
regarding his misconduct charge in the initial hearing, there is currently not enough
evidence to rule on the exhaustion issue as to the misconduct claims. Thus
Defendant’s objection must be overruled because a question of fact exists as to the
exhaustion of the false misconduct ticket claims.
In objection three, Plaintiff states that he may sue the individual Defendants in
both their official and unofficial capacities, citing Ex Parte Young, 209 U.S. 123
(1908) in support of his objection. However, the Ex Parte Young exception only
applies in cases seeking prospective relief. S & M Brands, Inc. v. Cooper, 527 F.3d
500, 509 (6th Cir. 2008), citing Pennhurst State School & Hospital v. Halderman, 465
U.S. 89, 105, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The exception does not apply to
past violations because that would “effectively eliminate the constitutional immunity
of the states.” Id. Therefore, the R&R was correct in the Eleventh Amendment
Immunity analysis. Since the state has neither waived its sovereign immunity nor
unequivocally consented to be sued, Plaintiff’s complaint against the MDOC and its
employees in their official capacities must be dismissed and Plaintiff’s objection
number three is overruled.
In his fifth objection, Plaintiff states that his substantive and procedural due
process rights were violated when Defendant Neuberger allegedly failed to investigate
Plaintiff’s claims and allowed Defendant Stemen to make a contradictory statement.
This objection does not change the outcome of the Magistrate’s analysis, which the
Court agrees with. With respect to the procedural due process claim, the “right to due
procedural due process…generally focuses on whether there existed adequate notice
and an opportunity for the affected parties to be heard.” Bertovich v. Village of Valley
View, Ohio, 431 Fed. Appx. 455, 459-60 (6th Cir. 2011).
There is no dispute that Plaintiff was given a hearing on his misconduct ticket
and took the opportunity afforded to appeal. Additionally, per Plaintiff’s complaint, he
states that the ticket was ultimately overturned by the Warden. Therefore, per the
Plaintiff’s own assertion, he participated in a procedural process that led to a
successful dismissal of his misconduct ticket and his procedural due process rights as
related to the misconduct ticket lack merit.
To successfully plead a federal substantive due process claim, there must be a
protected liberty or property interest. Experimental Holdings, Inc. v. Farris, 503 F.3d
514, 519 (6th Cir. 2007), citing Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 579 (1972). According to Sandin, a prisoner has a liberty interest in disciplinary
proceedings if the sanction faced by the inmate amounts to an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life”
or “will inevitably affect the duration of his sentence.” Sandin v. Conner, 515 U.S.
The Court agrees with the Magistrate that the removal of Plaintiff from the
Warden’s Forum and the temporary loss of privileges for four days is not an atypical
or significant hardship and also has no inevitable impact on the duration of his
sentence. See Courtney v. Michigan Dep’t of Corr., 2015 WL 4644811, at *5 (W.D.
Mich. 2015) (Court found that removal from the Warden’s Forum does not constitute
an atypical or significant hardship as required by Sandin v. Conner, 515 U.S. 472,
486-87 (1995)). Additionally, the loss of privileges for four days suffered by Plaintiff
is not an atypical or significant hardship. See e.g. Sandin, 515 U.S. at 484–86
(placement in administrative segregation for 30 days does not impose an atypical and
The Magistrate was also correct in concluding that Plaintiff lacks a liberty
interest in the Warden’s Forum position. There is no liberty or property interest in
prison employment or in a right to wages. See e.g. Dellis v. Corrections Corp. of Am.,
257 F.3d 508, 511 (6th Cir. 2001); Newsom v. Norris, 888 F.2d 371, 374 (6th Cir.
1989); Carter v. Tucker, 69 Fed.Appx 678, 680; 2003 WL 21518730 (6th Cir. July 1,
2003). Therefore there can be no due process claim from the loss of the Warden’s
Forum position based on a liberty or property interest.
To the extent that there are any other claims of due process violations
stemming from the misconduct hearing process, the Sixth Circuit has routinely held
that misconduct convictions that do not result in the loss of good time are neither
atypical nor significant deprivations, and therefore Plaintiff’s due process claims are
without merit. See e.g. Ingram v. Jewell, 94 Fed.Appx. 271, 273 (6th Cir. 2004);
Carter v. Tucker, 69 Fed. Appx. 678, 680 (6th Cir. 2003); Green v. Waldren, 2000
WL 876765, at *2 (6th Cir. June 23, 2000).
In the sixth objection, Plaintiff argues that Stemen’s affidavit creates an issue
of fact between Plaintiff and Stemen, and therefore he objects to his dismissal. In this
Order, the Court declined to adopt the recommended dismissal of Defendant Stemen
because the Defendants have not shown that the conspiracy to falsify the misconduct
ticket claim has not been exhausted. Therefore, this objection is sustained and
Defendant Stemen is not dismissed from the case.
Finally, in his last objection, Plaintiff states that the R&R did not address
Plaintiff’s 1988 claim so it must be allowed to go forward. 42 U.S.C. §1988 exists to
allow the Court, at its discretion, to award the prevailing party in a civil rights
proceeding a reasonable attorney’s fee as part of the costs. It is well established that
“§1988 does not create federal causes of action for violation of civil rights.”
Henderson v. Reyda, 192 F. App'x 392, 397 (6th Cir. 2006); see also Monell v.
Department of Social Servs. of City of N.Y., 436 U.S. 658 at 701 n. 66 (“42 U.S.C. §
1988 cannot be used to create a federal cause of action where § 1983 does not
otherwise provide one”). Given that this is not an independent cause of action, there
was no need to address §1988 further. Therefore, Plaintiff’s objection regarding the
§1988 claim is overruled as moot.
In conclusion, the practical effect of this Order dismisses all claims against
Defendants Singleton, Steward and Hughes. Summary Judgment is denied as to the
claims relating to relation by Defendants Visconti and Bridges and the claims of
conspiracy to falsify misconduct tickets by Defendants Neuberger, Benson and
IT IS ORDERED that the Report and Recommendation  is ADOPTED in
IT IS FURTHER ORDERED that the Motion for Summary Judgment  is
GRANTED in part.
IT IS FURTHER ORDERED that Plaintiff’s Judicial Notice  is DENIED
Dated: September 20, 2016
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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