Jasman #151314 v. Strauss et al
Filing
9
OPINION ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH JASMAN,
Plaintiff,
Case No. 1:11-cv-275
v.
Honorable Paul L. Maloney
UNKNOWN STRAUSS et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial
partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321
(1996), the Court is required to dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, 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), 1915A; 42
U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff’s action will be dismissed on immunity grounds and/or for failure to state a claim.
Factual Allegations
Plaintiff presently is incarcerated at the Bellamy Creek Correctional Facility but
complains of events that occurred at both Lakeland Correctional Facility (LCF) and St. Louis
Correctional Facility (SLF). Plaintiff sues the following LCF employees: Lieutenant Strauss,
Corrections Officer J. Miller, Hearing Officer A. Wright, Deputy Wardens Bonita Hoffner and
Deputy Warden Dan Hawkins, Unit Manager (unknown) Houtz and Grievance Coordinator Steven
Winchester. He also sues SLF Warden Nick Ludwick and Hobby Craft Director M. Card.
Plaintiff’s complaint concerns the seizure of his property at LCF and his subsequent transfer
to SLF, a security level IV prison. While at dinner on April 16, 2009, Plaintiff alleges that an officer
confiscated property from his cell without his permission. When Plaintiff returned to his cell, he
found all of his property missing. Plaintiff never received a receipt or a notice of removal for his
property. When he asked an officer what happened to his property, the officer said that the property
was taken to the control center. Later that day, Plaintiff was escorted to temporary segregation.
Lieutenant Strauss subsequently issued Plaintiff a Major Misconduct Report. According to the Major
Misconduct Report, Plaintiff was charged with possession of dangerous contraband. Apparently,
several detailed maps of prisons and camps of the Michigan Department of Corrections (MDOC)
were found in Plaintiff’s cell. Plaintiff, however, claims that the maps were part of a book set,
“Michigan Criminal Appeals: Practice and Procedure,” Second Edition, that he bought from the
State Appellate Defender’s Office (SADO) in 1989 (SADO book set). (Compl., docket #1, Page ID
#7.)
On April 22, Plaintiff received a hearing on the major misconduct ticket by Hearing
Officer Wright. Plaintiff explained to Wright that he purchased the maps over twenty years ago.
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Plaintiff requested to go to his footlocker to obtain the receipt for the SADO book set and for a 2001
administrative hearing report on the book set. In the administrative hearing report, a hearing officer
apparently found the SADO set to be legitimate legal materials. Wright, however, refused to grant
Plaintiff’s requests. Wright ultimately found Plaintiff guilty of possessing dangerous contraband.
He sentenced Plaintiff to seven days of toplock and fourteen days of loss of privileges. Wright did
not give Plaintiff any credit for the time he had already spent in temporary segregation.
During a security classification meeting on April 23, 2009, Defendants Hawkins and
Houtz reclassified Plaintiff to security level IV. Plaintiff claims that the increase in his security level
was “arbitrary, capricious and retaliatory.” (Comp., docket #1, Page ID#8.) Hawkins explained that
he was transferring Plaintiff to a higher security level because of the nature of Plaintiff’s major
misconduct ticket. Plaintiff claims that he was reclassified in violation of MDOC policy. Plaintiff
was eventually transferred to SLF, a level IV facility.
On May 5, 2009, Plaintiff requested a rehearing on his major misconduct ticket.
Plaintiff’s request was eventually approved. At the rehearing, Plaintiff was found not guilty of the
major misconduct violation.
On June 7, 2009, Plaintiff wrote LCF Deputy Warden Hoffner to determine who
authorized Lieutenant Strauss to take his property to the control center and search his property.
Hoffner never responded.
Because of Plaintiff’s transfer to a level IV facility, Plaintiff could not keep his hobby
craft material. At first, Plaintiff intended to mail the hobby craft items to someone outside the prison
and he prepared a disbursement authorization. Plaintiff, however, changed his mind. Plaintiff
ultimately decided to have the hobby craft items destroyed. Plaintiff claims that his hobby craft
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items were never destroyed as he requested. In August 2009, Plaintiff learned that the MDOC had
removed funds of $6.25 and $4.95 from his prison trust account on June 17, 2009.1 On August 15,
2009, Plaintiff filed a grievance, Grievance No. SLF-09-08-1074-01B, against SLF accounting for
removing the funds from his prison trust account. Plaintiff noted that the date on the disbursement
checks was the same date that he was called out by Hobby Craft Director M. Card to either dispose
of or send out his hobby craft material. Plaintiff claims that if he would not have been sent to a level
IV facility, he would not have lost his hobby craft material.
On August 15, 2009, after filing a Freedom of Information Act (FOIA) Request,
Plaintiff finally received the Contraband Removal Record Receipt for the removal of his property
on April 16, 2009. The receipt was prepared by Officer J. Miller. According to the Contraband
Removal Record Receipt, the contraband was turned over to Deputy Warden Hoffner for inspection.
On November 22, 2009, Plaintiff sent the LCF warden a letter regarding the
shakedown of his cell. On December 9, 2009, LCF Deputy Warden Hoffner responded to Plaintiff’s
letter but Plaintiff claims that she did not address his concerns. On December 14, Plaintiff wrote
Hoffner directly about his claims, however, Hoffner never responded.
Plaintiff argues that he should have been transferred back to LCF after he was found
not guilty at his rehearing for the major misconduct conviction. Plaintiff filed a grievance and wrote
several supervisors to help transfer him but he never received a response. Plaintiff complains that
Warden Ludwick had an obligation to see that Plaintiff was transferred from SLF, a level IV facility,
1
According to Plaintiff’s Step II grievance response for Grievance No. SLF-09-28-01074-01b, the charge of
$4.95 was refunded back to Plaintiff’s account. (See MDOC Step II Grievance Response, docket #1-3, Page ID#43.) In
his request for relief, Plaintiff only requests for reimbursement of the withdrawal of $6.25 from his prison trust account.
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to a level II facility after his misconduct was overturned. Plaintiff argues that he should not have had
to wait seven months before being transferred to a level II facility.
On July 21, 2010, Plaintiff was transferred to Ionia Maximum Correctional Facility
(IBC). Although IBC has a few units reserved for security level II prisoners, Plaintiff complains that
the rules and movement within IBC are similar to a level IV facility.
Plaintiff alleges that the shakedown and seizure of his property was illegal and in
violation of MDOC policies, procedures, administrative rules and statutes. Plaintiff filed several
grievances regarding the handling of the shakedown of his cell. As to his grievances, Plaintiff
complains that Defendant Winchester wrongly denied several of his grievances as duplicative of
Grievance No. LCF-2009-05-0432-19z2. Plaintiff also sent several FOIA requests for copies of the
shakedown logs pertaining to the property removal to no avail.
For relief, Plaintiff requests monetary damages of $281,674.61.
Discussion
I.
Immunity
Plaintiff sues Hearing Officer Wright. Defendant Wright is a hearing officer whose
duties are set forth at MICH. COMP. LAWS § 791.251 through § 791.255. Hearing officers are
required to be attorneys and are under the direction and supervision of a special hearing division in
the Michigan Department of Corrections. See MICH. COMP. LAWS § 791.251(e)(6). Their
adjudicatory functions are set out in the statute, and their decisions must be in writing and must
include findings of facts and, where appropriate, the sanction imposed. See MICH. COMP. LAWS
§ 791.252(k). There are provisions for rehearings, see MICH. COMP. LAWS § 791.254, as well as for
judicial review in the Michigan courts. See MICH. COMP. LAWS § 791.255(2). Accordingly, the
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Sixth Circuit has held that Michigan hearing officers are professionals in the nature of administrative
law judges. See Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988). As such, they are entitled to
absolute judicial immunity from inmates’ § 1983 suits for damages based on actions taken in their
capacities as hearing officers. Id.; see also Barber v. Overton, 496 F.3d 449, 452 (6th Cir. 2007);
Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007); Pierson v. Ray, 386 U.S. 547, 554-55 (1967)
(judicial immunity applies to actions under § 1983 to recover for alleged deprivation of civil rights).
Because Plaintiff only requested monetary damages for relief, the Court will dismiss Plaintiff’s
complaint against Defendant Wright on immunity grounds.
II.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails 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, 45-46 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer
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more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’
– that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2));
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal
plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A.
Respondeat Superior
Plaintiff fails to make specific factual allegations against Assistant Deputy Warden
Hoffner, other than his claim that Hoffner failed to conduct an investigation in response to his
grievances and letters. Government officials may not be held liable for the unconstitutional conduct
of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 129 S. Ct.
at 1948; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556
F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active
unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber,
310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can
supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310
F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not
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be imposed simply because a supervisor denied an administrative grievance or failed to act based
upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
“[A] plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Plaintiff has failed to
allege that Defendant Hoffner engaged in any active unconstitutional behavior. Accordingly, he fails
to state a claim against Defendant Hoffner.
B.
Due Process - Grievances
Plaintiff asserts that Grievance Coordinator Winchester wrongly denied his
grievances as duplicative of another grievance. Plaintiff’s allegations against Defendant Winchester
implicate the Due Process Clause of the Fourteenth Amendment.
Plaintiff has no due process right to file a prison grievance. The Sixth Circuit and
other circuit courts have held that there is no constitutionally protected due process right to an
effective prison grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th
Cir. 2005); Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No.
99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir.1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Michigan law does not
create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249
(1983); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because
Plaintiff has no liberty interest in the grievance process, Defendant Winchester’s conduct did not
deprive him of due process.
Furthermore, the Sixth Circuit has held that where a defendant’s only involvement
in the allegedly unconstitutional conduct is “the denial of administrative grievances or the failure to
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act,” the defendant cannot be liable under § 1983. Shehee, 199 F.3d at 300. Failing to intervene on
a prisoner’s behalf to remedy alleged unconstitutional behavior does not amount to active
unconstitutional behavior by a person who merely denies an administrative grievance. See id.
Plaintiff, therefore, fails to state a due process claim against Defendant Winchester.
C.
Due Process - Major Misconduct Ticket
Plaintiff complains that (1) he wrongly received a major misconduct ticket from
Lieutenant Strauss for possessing contraband; (2) Hearing Officer Wright refused to allow Plaintiff
to present evidence of a receipt for the SADO book set and of a 2001administrative hearing report
on the SADO book set; (3) Wright refused to give Plaintiff credit for the time Plaintiff served in
temporary segregation; and (4) Officer Miller never gave Plaintiff his Contraband Removal Record
Receipt for the removal of the SADO book set.
Plaintiff’s claims regarding his major misconduct ticket arguably implicate the Due
Process Clause of the Fourteenth Amendment. A prisoner’s ability to challenge a prison misconduct
conviction depends on whether the conviction implicates a liberty interest. In the seminal case in
this area, Wolff v. McDonnell, 418 U.S. 539 (1974), the Court prescribed certain minimal procedural
safeguards that prison officials must follow before depriving a prisoner of good-time credits on
account of alleged misbehavior. The Wolff Court did not create a free-floating right to process that
attaches to all prison disciplinary proceedings; rather, the right to process arises only when the
prisoner faces a loss of liberty, in the form of a longer prison sentence caused by forfeiture of goodtime credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
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shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every conceivable
case of government impairment of private interest.” But the State having created the
right to good time and itself recognizing that its deprivation is a sanction authorized
for major misconduct, the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment “liberty” to entitle him to those minimum
procedures appropriate under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct conviction resulted in any loss of
good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law as it relates
to the creation and forfeiture of disciplinary credits2 for prisoners convicted for crimes occurring after
April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined that loss of
disciplinary credits does not necessarily affect the duration of a prisoner’s sentence. Rather, it
merely affects parole eligibility, which remains discretionary with the parole board. 481 F.3d at 440.
Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held that a
misconduct citation in the Michigan prison system does not affect a prisoner’s constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196, at *4 (E.D. Mich. Nov.
24, 2010) (Report & Recommendation) (“plaintiff’s disciplinary hearing and major misconduct
sanction does not implicate the Fourteenth Amendment Due Process Clause”), adopted as judgment
of court, Order of Jan. 4, 2011. In the absence of a demonstrated liberty interest, plaintiff has no dueprocess claim. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
2
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. MICH. COMP. LAWS § 800.33(5).
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Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Although Plaintiff
states that he was sentenced to seven days of toplock and fourteen days of loss of privileges his major
misconduct did not result in an extension of the duration of his sentence or some other atypical
hardship. Because Plaintiff has not identified a significant and atypical deprivation arising from his
conviction, his due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004).
Therefore, Plaintiff’s due-process claims against Defendants Strauss, Wright and Miller fail to state
a claim.3
D.
Due Process - Removal of Property
Plaintiff complains that Officer Miller wrongly removed his property on April 16,
2009, and did not provide a receipt for the property or a notice of the removal. Plaintiff also claims
that Defendant Card deprived him of his hobby-craft materials.4 Finally, Plaintiff alleges that he
should never have been charged $6.25 from his prison trust account because he requested that the
MDOC destroy his hobby craft materials.
Plaintiff’s due-process claims are barred by the doctrine of Parratt v. Taylor, 451 U.S.
527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person
deprived of property by a “random and unauthorized act” of a state employee has no federal
due process claim unless the state fails to afford an adequate post-deprivation remedy. If an adequate
post-deprivation remedy exists, the deprivation, although real, is not “without due process of law.”
3
The Court previously found that Hearing Officer Wright is also immune from monetary damages.
4
The Court notes that the Parratt case, like the instant case, involved a prisoner’s allegations that he had been
deprived of his hobby materials without due process. Parratt, 451 U.S. at 530.
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Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivation of property,
as long as the deprivation was not done pursuant to an established state procedure. See Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff’s claims are premised upon allegedly
unauthorized negligent acts of a state official, he must plead and prove the inadequacy of state postdeprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v.
Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure
to sustain this burden requires dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751
F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Nov. 15, 2004). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; Policy
Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims
asserting tort or contract claims “against the state and any of its departments, commissions, boards,
institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The Sixth Circuit specifically
has held that Michigan provides adequate post-deprivation remedies for deprivation of property. See
Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court action would not
afford him complete relief for the deprivation, either negligent or intentional, of his personal
property. Accordingly, Plaintiff fails to state a due-process claim against Defendants Miller and
Card.
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E.
Fourth Amendment
Plaintiff claims that Defendants violated his Fourth Amendment rights by removing
property from his cell. The Fourth Amendment protects “against unreasonable searches and
seizures.” U.S. CONST. AM. IV. The Fourth Amendment, however, applies only when “the person
invoking its protection can claim a justifiable, a reasonable or a legitimate expectation of privacy that
has been invaded by government action.” Hudson, 468 U.S. at 525. In Hudson, 468 U.S. at 525-26,
the Supreme Court held that prisoners have no reasonable expectation of privacy in their cells, and
upheld unannounced cell searches. Further, in Hudson, the Supreme Court noted that the same
reasons which led it to conclude that the Fourth Amendment did not prohibit searches of a prisoner’s
cell, applied with equal force to seizures. Id. at 528 n.8. The Court stated that “[p]rison officials
must be free to seize from cells any articles which, in their view, disserve legitimate institutional
interests.” Id. Because “the Fourth Amendment’s proscription against unreasonable searches [and
seizures] is inapplicable in a prison cell,” Plaintiff fails to state a claim against Defendants for the
search and seizure of his property in his cell. Id.
F.
First Amendment
Plaintiff claims that Defendants Hawkins and Houtz retaliated against him by
transferring him from a level II facility to a level IV facility. Retaliation based upon a prisoner’s
exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175
F.3d 378, 394 (6th Cir.1999) (en banc). In order to set forth a First Amendment retaliation claim,
a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was
taken against him that would deter a person of ordinary firmness from engaging in that conduct; and
(3) the adverse action was motivated, at least in part, by the protected conduct. Id. at 394. Moreover,
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Plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating
factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037
(6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)).
Plaintiff’s retaliation claim fails the first prong. Plaintiff has not alleged that he was
engaged in any protected conduct. Certainly, receiving a major misconduct ticket is not protected
conduct. See Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (prisoner’s act of calling the
hearing officer a “foul and corrupt bitch” was not protected conduct because such behavior fell
within the definition of “insolence” under the MDOC Policy Directive governing prisoner
misconduct.)
Even if Plaintiff had satisfied the first prong by engaging in protected conduct, the
transfer of Plaintiff between prisons was not an adverse action taken against him. “Since prisoners
are expected to endure more than the average citizen, and since transfers are common among prisons,
ordinarily a transfer would not deter a prisoner of ordinary firmness from continuing to engage in
protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005). See, e.g., Smith v.
Yarrow, 78 F. App’x. 529, 543 (6th Cir. 2003) (“transfer from one prison to another prison cannot
rise to the level of an adverse action because it would not deter a person of ordinary firmness from
the exercise of his First Amendment rights”) (internal quotation marks omitted). If, however, a
foreseeable consequence of a transfer would be to substantially inhibit a prisoner’s ability to access
the courts, then such a transfer could be considered an “adverse action” that would deter a person of
ordinary firmness from continuing to engage in the protected conduct. See Siggers-El, 412 F.3d at
702 (holding that a transfer was an “adverse action,” where the transfer resulted in plaintiff losing
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a high paying job that paid for his lawyer fees and moved him further from the attorney); Johnson
v. Beardslee, No. 1:06-CV-374, 2007 WL 2302378, at *5 (W.D. Mich. Aug. 8, 2007). Similarly, the
Sixth Circuit has held that a transfer to segregation or to an area of the prison used to house mentally
disturbed inmates could be sufficiently adverse. See Thaddeus-X, 175 F.3d at 398; see also Hill v.
Lappin, 630 F.3d 468 (6th Cir. 2010).
Plaintiff’s transfer was from a level II facility to a level IV facility. Transfers to the
general population of another prison are not typically an adverse action. See Smith v. Yarrow, 78 F.
App’x 529, 543 (6th Cir. 2003) (collecting cases); see also Hill, 630 F.3d at 473; Thaddeus-X, 175
F.3d at 398. Plaintiff does not allege that he was transferred to a lock-down unit at the new facility
or that his access to the courts was compromised as a result of the transfer; he only alleges that he
had to give up his hobby craft materials. Therefore, the transfer was insufficient to constitute an
adverse action. In summary, Plaintiff fails to state a claim for retaliation.
G.
State Law
Plaintiff claims that Defendants violated his constitutional rights under the Michigan
constitution, state statutes, common law and MDOC policy directives. Defendant’s alleged failure
to comply with an administrative rule or policy does not itself rise to the level of a constitutional
violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Smith v. Freland, 954 F.2d 343,
347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992); McVeigh v.
Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to follow policy
directive does not rise to the level of a constitutional violation because policy directive does not
create a protectable liberty interest). Section 1983 is addressed to remedying violations of federal
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law, not state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d at 58081.
Moreover, to the extent that Plaintiff’s complaint presents claims under state law, this
Court declines to exercise jurisdiction over the state law claims. “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 state law claims should be dismissed without reaching
their merits.” Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998) (citing
Faughender v. City of N. Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991)); see also Landefeld v.
Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993).
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action will be dismissed on immunity grounds and/or for failure to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
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Dated: September 12, 2011
/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District
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