Horne v. Webster

Filing 5

OPINION and ORDER of Summary Dismissal. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONNY HORNE,
Plaintiff,
Civil Case No. 4:15-CV-11511
Honorable Linda V. Parker

v.
LT. WEBSTER,
Defendant.
________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL
Plaintiff Tonny Horne (“Plaintiff”), confined at the Macomb Correctional
Facility (“MRF”) in New Haven, Michigan, has filed a civil rights complaint
against Defendant pursuant to 42 U.S.C. § 1983. For the reasons that follow, the
Court is summarily dismissing Plaintiff’s Complaint.
Factual Background
In his Complaint, Plaintiff claims that Defendant found him guilty of
insolence on April 10, 2015, based on a charge that Plaintiff sent an inappropriate
letter to the prison grievance coordinator at MRF. Plaintiff claims that the act
which led to this conviction– placing a heart symbol on the letter– did not
constitute insolence. Plaintiff indicates that insolence is a Class II Misconduct
within the Michigan Department of Corrections (“MDOC”). (ECF No. 1 at Pg ID
3); see also MDOC Police Directive 03.03.105B, Att. B (including insolence in the

list of Class II Misconducts). Plaintiff seeks monetary damages.
Standard of Review
Plaintiff has been allowed to proceed in this action without prepayment of
the filing fee pursuant to 28 § U.S.C. 1915(a). Pursuant to § 1915, the Court is
required to dismiss any action brought by a plaintiff proceeding in forma pauperis
if the complaint is frivolous, malicious, or fails to state a claim upon which relief
can be granted, or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915(e)(2). Moreover, the Prison Litigation Reform Act requires a
court to initially screen any complaint filed by a prisoner regardless of any filing
fee paid, and to sua sponte dismiss any complaint the court determines is frivolous,
malicious, or fails to state a claim upon which relief can be granted, or that seeks
monetary relief against a defendant who is immune from such relief. See 28 U.S.C.
§ 1915A.
A court must read a pro se complaint liberally, see Haines v. Kerner, 404
U.S. 519, 520 (1972), and accept the plaintiff’s allegations as true, unless they are
clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). All complaints, however, must plead facts sufficient to show that a legal
wrong has been committed from which the plaintiff may be granted relief. See
Fed. R. Civ. P. 12(b)(6). A complaint need not contain “detailed factual
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allegations,” however, a plaintiff’s obligation to provide grounds entitling him to
relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations omitted).
Analysis
Plaintiff’s Complaint is subject to dismissal because Plaintiff fails to state a
claim upon which relief can be granted.
To prevail under 42 U.S.C. § 1983, Plaintiff must establish that: (1)
Defendant acted under color of state law; and (2) the offending conduct deprived
Plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th
Cir. 1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “If a plaintiff fails
to make a showing on any essential element of a § 1983 claim, it must fail.”
Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). Plaintiff cannot show
that his discipline for insolence violated his federally protected rights. Plaintiff’s
Complaint reflects that he received a disciplinary hearing. (See ECF No. 1 at Pg
ID 5.) The Supreme Court has held that a disciplinary regulation does not
implicate a liberty interest unless it “imposes 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).
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Under Michigan Department of Corrections (“MDOC”) Policy Directive
Number 03.03.105, Class I Misconducts are “major” misconducts and Class II and
III Misconducts are “minor” misconducts. This policy directive further provides
that prisoners are deprived of good time or disciplinary credits only when they are
found guilty of a Class I Misconduct. See MDOC Policy Directive
03.03.105(AAAA). Attachment D to the policy directive sets forth the sanctions
available for Class II Misconducts. Those sanctions are limited to the following:
“toplock” (i.e. confinement to quarters) not to exceed five days; loss of privileges,
not to exceed thirty days; assignment of extra duty, not to exceed forty hours; and
restitution and/or disgorgement of funds/ill gotten gains. MDOC Policy Directive
03.03.105, Att. D.
In his Complaint, Plaintiff does not indicate what sanctions, if any, were
imposed after he was found guilty of insolence. Because Plaintiff was convicted of
a Class II Misconduct, however, he was not subject to forfeiture of good-time
credits. Moreover, any sanctions Plaintiff possibly could have received would not
represent a deprivation of a constitutionally protected liberty interest. See, e.g.,
Carter v. Tucker, 69 F. App'x 678, 680 (6th Cir. 2003) (loss of privileges and
placement in segregation do not implicate a liberty interest sufficient to invoke the
Due Process Clause); Green v. Waldren, No. 99-1561, 2000 WL 876765, at * 2
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(6th Cir. June 23, 2000) (toplock does not represent an atypical or significant
hardship amounting to a violation of any liberty interest); Staffney v. Allen, No. 981880, 1999 WL 617967, at *2 (6th Cir. Aug. 12, 1999) (finding no liberty interest
implicated where the inmate’s sanctions included destruction of the contraband
which led to his misconduct violation, five days in toplock, fourteen days loss of
privileges, and 120 days extra duty). The Sixth Circuit has repeatedly held that
misconduct convictions that do not result in the loss of good time credits are not
atypical and significant deprivations and therefore do not implicate due process.
See, e.g., Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004); Carter, 69 F.
App’x. at 680; Green, 2000 WL 876765, at *2, Staffney, 1999 WL 617967, at *2.
Plaintiff, therefore, fails to state a due process claim arising from his Class II
Misconduct conviction.
For the above reasons, the Court is summarily dismissing Plaintiff’s
Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Further, because
Plaintiff’s Complaint against Defendant lacks any arguable basis in the law, this
Court certifies that any appeal by Plaintiff would be frivolous and not undertaken
in good faith. See 28 U.S.C. § 1915(a).
Accordingly,
IT IS ORDERED that Plaintiff’s Complaint is summarily DISMISSED
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WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A);
IT IS FURTHER ORDERED that any appeal taken by plaintiff would not
be done in good faith.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 7, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 7, 2015, by electronic and/or U.S.
First Class mail.
S/ Richard Loury
Case Manager

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