Bostrom #647630 v. Rowland et al

Filing 6

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN BOSTROM,
Plaintiff,

Case No. 1:15-cv-336

v.

Honorable Gordon J. Quist

J. ROWLAND 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. 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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendant Robinson. Additionally, the Court will dismiss Plaintiff’s claim
against Defendants Rowland and McKee for violation of due process, freedom of association and
the Eighth Amendment in connection with the permanent visitor restriction implemented against
Plaintiff’s mother. The Court will serve the complaint against Defendants Rowland, McKee,

Pepper, Wise and Benoit for retaliation and against Defendants Pepper, Spurbeck and
Wojciechowski for Eighth Amendment violations.
Discussion
I.

Factual allegations

Plaintiff John Bostrom presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Carson City Correctional Facility. Plaintiff alleges that he had regularly
received visits from his mother and children until February 2013. On an unspecified date in
February, 2013, Plaintiff’s mother was visiting with him when Plaintiff and his mother complained
about the foul language used by a female correctional officer towards them. After Plaintiff and his
mother made this complaint, Defendant Rowland became hostile toward Plaintiff and his family.
After another visit, Plaintiff told Defendant Rowland that if she continued to behave disrespectfully
toward him and his family he would complain to her supervisors and file a grievance. Defendant
Rowland responded to Plaintiff’s remark by telling Plaintiff that she would terminate and
permanently restrict Plaintiff’s mother’s visits if Plaintiff complained or filed a grievance. Plaintiff
informed Defendant Benoit about Defendant Rowland’s threats and Defendant Benoit told Plaintiff
not to complain or file a grievance. Plaintiff also complained to Defendant McKee and Defendant
Wise.
On February 9, 2013, as Plaintiff was waiting to visit with his mother, Defendant
Rowland informed him that she had terminated his mother’s visit because when Defendant Rowland
tried to search Plaintiff’s mother, Plaintiff’s mother “swung at” Defendant Rowland. (Compl.,
docket #1, Page ID#7.) Defendant Rowland refused to return Plaintiff’s identification card so he
could return to his unit, and tried to get a rise out of Plaintiff so that she could place him in
administrative segregation. During the week following this incident, Plaintiff was harassed by
Defendant Rowland and other unit staff. Plaintiff alleges that this campaign of harassment resulted
-2-

in him losing control and, on February 16, 2013, Plaintiff was tazed, restrained and handcuffed, then
escorted to administrative segregation. While escorting Plaintiff, Defendant Pepper pushed and
shoved Plaintiff and bent his left wrist in such a way that it snapped and broke. Plaintiff told
Defendant Pepper that he would file a grievance, complain and sue Defendant Pepper for breaking
his wrist. Plaintiff alleges that in response, Defendant Pepper referenced Plaintiff’s complaint
against Defendant Rowland as the reason he broke Plaintiff’s wrist. Plaintiff pleaded guilty to
threatening behavior and disobeying an order in connection with the February 16, 2013, incident.
Plaintiff did not receive medical treatment on February 16. Plaintiff was visited at
his cell by Defendant Spurbeck, but he was not treated despite complaining that his wrist was broken
and that he was in extreme pain. Plaintiff alleges that Defendant Spurbeck falsified Plaintiff’s
medical record by writing that Plaintiff was “denying need for healthcare.” (Id. at Page ID#10.)
Plaintiff alleges that nurses made rounds, but other than giving Plaintiff some Motrin, the nurses
refused to treat his broken wrist.
On February 22, 2013, Defendant Wojciechowski saw Plaintiff but denied him
medical treatment, despite acknowledging that Plaintiff’s wrist appeared to be, and felt, broken.
Plaintiff alleges that when he explained to Defendant Wojciechowski that the officers escorting him
to administrative segregation claimed that Plaintiff broke his wrist when he fell on it while trying
to break his fall after being tazed, Defendant Wojciechowski said it would have been impossible for
Plaintiff’s wrist to have broken that way because the tasing would have prevented Plaintiff from
thinking clearly enough to consider using his arms to break his fall. Despite Plaintiff’s request,
Defendant Wojciechowski refused to x-ray Plaintiff’s wrist and allegedly told Plaintiff, “this is what
happens when [you] get into trouble.” (Id. at Page ID#10.)

-3-

On March 7, 2013, nearly three weeks after Defendant Pepper broke Plaintiff’s wrist,
Plaintiff’s wrist was x-rayed and it was confirmed that his wrist was broken. Eventually, Plaintiff
had wrist surgery.
On March 12, 2013, after a formal hearing at which Plaintiff’s mother was present
and gave testimony, Defendant McKee wrote to Plaintiff’s mother advising her that she was to be
permanently restricted from visiting any Michigan Department of Corrections facility. Plaintiff
alleges that this permanent restriction is a violation of Michigan Department of Corrections policy.
Plaintiff asked Defendant McKee if he would deviate from the permanent restriction policy, but
according to Plaintiff, Defendant McKee said: “That’s what happens when you become a problem
for us.” (Id. at Page ID#8.) Since the visitor restriction was implemented, Plaintiff has had only
one non-contact visit with his mother and two visits with his children.
On March 26, 2013, Defendant Wise wrote a misconduct report against Plaintiff for
filing a grievance against Defendant Pepper for excessive force because Defendant Pepper was
found not to have used excessive force against Plaintiff and because Plaintiff’s grievance could have
resulted in disciplinary action against Defendant Pepper. Plaintiff alleges that Defendant Wise
threatened Plaintiff during the grievance interview by telling Plaintiff “he was ‘going to learn a
lesson about how things go in Ionia’[.]” (Id. at Page ID#12.)
On March 28, 2013, after Plaintiff told Defendant Benoit that Plaintiff intended to
sue him and Defendant Rowland, Defendant Benoit said, “So you haven’t learned.” (Compl., docket
#1, Page ID#12.) A few minutes after this exchange Plaintiff was taken back to administrative
segregation for a threatening behavior ticket written by Defendant Benoit for “trying to put a ‘hit’
on” Defendant Rowland. (Id. at Page #13.) On April 8, 2013, Defendant Benoit’s threatening
behavior ticket was dismissed.
-4-

After filing a number of grievances, it appears that Plaintiff was placed on modified
access and as a result, he alleges that he was denied the ability to file additional grievances.
Plaintiff alleges claims for retaliation, violation of his due process, freedom of
association and Eighth Amendment rights in connection with the visitor restriction prohibiting his
mother from visiting him, and violation of his Eighth Amendment rights in connection with his
broken wrist and failure to obtain medical treatment. Plaintiff also alleges a violation of Michigan
Department of Corrections policy. As relief, Plaintiff seeks compensatory damages, punitive
damages, declaratory and injunctive relief.
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, 556 U.S. 662, 678
(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, 556 U.S. at 679.
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.” Id. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
-5-

pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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.

Retaliation

Plaintiff alleges that Defendant Rowland terminated his mother’s visits and harassed
him in retaliation for Plaintiff complaining about correctional staff’s mistreatment of Plaintiff and
his mother. Plaintiff alleges that Defendant McKee permanently restricted his mother from visiting
in retaliation for Plaintiff complaining and writing grievances about staff misconduct. Additionally,
Plaintiff alleges that Defendant Pepper broke his wrist in retaliation for Plaintiff complaining and
writing grievances about Defendant Rowland’s misconduct. Plaintiff alleges that Defendant Wise
threatened him and issued a misconduct in retaliation for Plaintiff writing a grievance against
Defendant Pepper for breaking his wrist. Plaintiff alleges that after he threatened to sue Defendant
Benoit, Defendant Benoit retaliated against him by sending him to administrative segregation,
keeping him in administrative segregation after he should have been released, and fabricating a
misconduct which was later dismissed. Finally, Plaintiff alleges that Defendant Robinson retaliated
against him for writing grievances by placing Plaintiff on modified access.
-6-

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. Moreover, a 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)).
At this juncture, Plaintiff’s allegations are sufficient to state a retaliation claim
against Defendants Rowland, McKee, Pepper, Wise and Benoit. However, Plaintiff fails to
sufficiently state a retaliation claim against Defendant Robinson because he cannot demonstrate
adverse action. The Sixth Circuit repeatedly has held that placement on modified access does not
constitute an adverse action for purposes of a retaliation claim. See, e.g., Jackson v. Madery, 158
F. App’x 656, 660 (6th Cir. 2005) (per curiam); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441,
446 (6th Cir. 2005).
B.

Visitor Restriction

Plaintiff alleges that Defendants Rowland and McKee violated his right to freedom
of association under the First Amendment, his Eighth Amendment rights and his right to due process
under the Fourteenth Amendment, when they permanently restricted his mother’s visiting privileges.
Additionally, Plaintiff alleges that this permanent restriction violates MDOC policy.
Under MDOC regulations, an inmate may receive visits only from individuals placed
on an approved visitor list, except that a small number of certain specified persons may visit without
-7-

being listed. See MDOC Policy Directive (PD) 05.03.140 ¶¶ G, N. Once on the approved visitor
list, a visitor can request removal, id. at ¶¶ Q, R, or the MDOC may terminate a visit and disallow
future visits under certain circumstances, id. at ¶¶ JJ et seq. A permanent restriction prohibiting all
future visits may be imposed for a limited number of reasons, including when “[t]he visitor assaults
staff or others or threatens them with physical harm.” Id. at ¶ PP.2. A restricted visitor may have
the restriction removed “by sending a written request to the Warden of the facility where the
prisoner with whom the visitor wants to visit is located.” Id. at ¶ XX. The Warden makes a written
recommendation to the CFA Deputy Director, who must then decide whether to remove the
restriction. Id. at ¶ XX.1. If the restriction is not removed, the visitor receives written notice, which
shall include information about when the visitor will be eligible to reapply for removal. Id.; see also
id. at ¶ XX.2.
1.

First Amendment

Plaintiff fails to state a claim for violation of his First Amendment rights against
Defendants Rowland and McKee. Prisoners do not enjoy all of the liberties and privileges enjoyed
by other citizens. See Overton v. Bazzetta (Bazzetta I) , 539 U.S. 126, 131 (2003). A prisoner does
not retain rights inconsistent with proper incarceration. See Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 125 (1977); Shaw v. Murphy, 532 U.S. 223, 229 (2001). Freedom
of association is among the rights least compatible with incarceration; some curtailment of that right
must be expected in the prison context. See Jones, 433 U.S. at 125–126; Bazzetta I, 539 U.S. at 131.
As continually emphasized by the Supreme Court, the problems of prison
administration are peculiarly for resolution by prison authorities and their resolution should be
accorded deference by the courts. See Shaw, 532 U.S. at 228-29; Washington v. Harper, 494 U.S.
210, 224 (1990); Turner v. Safley, 482 U.S. 78, 84-96 (1987); O’Lone v. Estate of Shabazz, 482 U.S.
-8-

342, 349 (1987); Bell v. Wolfish, 441 U.S. 520, 547 (1979); Jones, 433 U.S. at 125-126. These
concerns are even stronger when a state penal institution is involved. Glover v. Johnson, 138 F.3d
229, 241 (6th Cir. 1998).
Prison officials may enforce a regulation that impinges on a prisoner’s constitutional
rights if the regulation “is reasonably related to legitimate penological interests.” See Turner, 482
U.S. at 89. To determine whether a prison official’s actions are reasonably related to a legitimate
penological interest, the Court must assess an official’s actions by reference to the following factors:
(1) whether there exists a valid, rational connection between the prison regulation and the legitimate
governmental interest; (2) whether there remain alternative means of exercising the right; (3) the
impact that accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally; and (4) whether there are ready
alternatives available that fully accommodate the prisoner’s rights at de minimis cost to valid
penological interests. Id. at 89-90. Applying this standard, the Supreme Court has upheld a variety
of limitations on First Amendment protections. See Shaw, 532 U.S. at 229 (holding that prisoners
do not have a First Amendment right to provide legal assistance to other prisoners) (quoting Pell v.
Procunier, 417 U.S. 817, 822 (1974) (sustaining proscriptions on media interviews)); Thornburgh
v. Abbott, 490 U.S. 401, 419 (1989) (applying Turner standard to a prison ban on certain
publications); Turner, 482 U.S. at 93 (restricting inmate-to-inmate correspondence). See also North
Carolina Prisoners’ Labor Union, Inc., 433 U.S. at 133 (upholding prohibition on prisoner labor
unions).
After an administrative hearing in which she was present and testified, Plaintiff’s
mother was permanently restricted from visiting MDOC facilities because she was found to have
physically threatened Defendant Rowland. MDOC PD 05.03.140 ¶ PP.2, which allows a visitor to
-9-

be permanently restricted when the visitor has threatened staff with physical harm, serves valid
penological interests such as maintaining order within the prison and protecting the safety of staff
and other inmates. Additionally, there remained available to Plaintiff multiple alternatives to inperson visits, such as writing letters to his mother, telephone calls, and Plaintiff and his mother could
exchange information via a non-restricted visitor. These alternatives were readily available to
Plaintiff, allowed Plaintiff to maintain a close and supportive relationship with his mother, and
presented little, if any, cost to the valid penological interests underpinning MDOC PD 05.03.140
¶ PP.2. Moreover, the impact of the restriction was intended to protect guards and other prisoners
and to allow for the safe and efficient operation of the prison. Finally, although denominated as
“permanent,” a restricted visitor may have the restriction removed. See id. at ¶ XX.
Under the circumstances present here, Plaintiff cannot state a claim against
Defendants Rowland and McKee for violation of his First Amendment rights.
2.

Eighth Amendment

Plaintiff fails to state a claim for violation of his Eighth Amendment rights against
Defendants Rowland and McKee. The Eighth Amendment imposes a constitutional limitation on
the power of the states to punish those convicted of crimes. Punishment may not be “barbarous”
nor may it contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S.
337, 345-46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves
the “unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
(per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial
of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson
v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with
“deprivations of essential food, medical care, or sanitation” or “other conditions intolerable for
-10-

prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th
Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)).
Plaintiff cannot state an Eighth Amendment claim based on his mother’s permanent
visitor restriction because enforcement of the visitor restriction regulation does not create “inhumane
prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor
does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might
occur.” Bazzetta I, 539 U.S. at 137 (citing Estelle v. Gamble, 429 U.S. 97 (1976); Rhodes v.
Chapman, 452 U.S. 337 (1981).) As discussed above, Plaintiff had readily available alternative
means of maintaining contact with his mother, including letter writing and phone calls.
Additionally, Plaintiff’s mother may obtain removal of the restriction. Consequently, Plaintiff fails
to state an Eighth Amendment claim against Defendants Rowland and McKee.
3.

Due Process

Plaintiff fails to state a claim against Defendants Rowland and McKee for violation
of his Fourteenth Amendment rights. “The Fourteenth Amendment protects an individual from
deprivation of life, liberty or property, without due process of law.” Bazzetta v. McGinnis (Bazzetta
II), 430 F.3d 795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due
-11-

process violation, a plaintiff must show that one of these interests is at stake. Wilkinson v. Austin,
545 U.S. 209, 221 (2005). Analysis of a procedural due process claim involves two steps: “[T]he
first asks whether there exists a liberty or property interest which has been interfered with by the
State; the second examines whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). The
Supreme Court long has held that the Due Process Clause does not protect every change in the
conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S. 215,
225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard for
determining when a state-created right creates a federally cognizable liberty interest protected by
the Due Process Clause. Under Sandin, a prisoner is entitled to the protections of due process only
when the sanction “will inevitably affect the duration of his sentence” or when a deprivation
imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. at 486–87; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer–Bey
v. Brown, 62 F.3d 789, 790–91 (6th Cir. 1995).
Plaintiff fails to state a due process claim against Defendant Rowland because he fails
to allege any conduct by Rowland that deprived him of a protected liberty interest. Plaintiff only
alleges that Defendant Rowland informed him that she had terminated his mother’s February 9, 2013
visit because his mother took a swing at her. Plaintiff fails to allege any facts to suggest that
Defendant Rowland was responsible for deciding to permanently restrict his mother’s visits.
Moreover, it is not apparent that Plaintiff had a liberty interest in his visitation that
was protected by due process. On remand following the Supreme Court’s decision in Bazzetta I, 539
U.S. at 126, the Sixth Circuit considered whether Michigan’s visitor restriction policy implicates
a protected liberty interest entitling a prisoner to the due process protections of a hearing. See
-12-

Bazzetta II, 430 F.3d at 802–03. The Sixth Circuit concluded that the Supreme Court had implicitly
ruled on the issue by citing Sandin and stating that the visitor restriction was not a “‘dramatic
departure from accepted standards for conditions of confinement.’” Id. at 799 (quoting Bazzetta I,
539 U.S. at 137). Based on the Supreme Court’s language, the Sixth Circuit held that, because the
permanent, but reviewable, visitor restriction policy did not amount to an “atypical and significant
hardship” in relation to the ordinary incidents of prison life, a prisoner has no protectible liberty
interest at stake in the policy. Id. at 803-805.
Applying Bazzetta II to the instant case, the Court concludes that Plaintiff has no
liberty interest in the visitor restriction that permanently prohibited Plaintiff's mother from visiting.
As previously discussed, MDOC policy authorizes a permanently restricted visitor to request
removal of the visitor restriction. MDOC PD 05.03.140 ¶ XX. If removal of the restriction is
denied, the restricted visitor receives written notice, which shall include information about when the
visitor will be eligible to reapply for removal of the restriction. Id. at ¶ XX.1.
Moreover, even assuming that Plaintiff had a protected liberty interest in visitation
with his mother, it is clear that Plaintiff received due process of law. In all cases where a person
stands to be deprived of his life, liberty or property, he is entitled to due process of law. This due
process of law gives the person the opportunity to convince an unbiased decision maker that, for
example, he has been wrongly or falsely accused or that the evidence against him is false. See, e.g.,
Wolff v. McDonnell, 418 U.S. 539, 558 (1974).
Prior to having the visitor restriction made permanent, Plaintiff received a hearing
before a hearing officer. The hearing officer considered the evidence collected by Investigator
Novak during his investigation of the incident involving Defendant Rowland and Plaintiff’s mother,
including the statements of other correctional officers who were present at the time of the incident,
-13-

Plaintiff’s mother’s statement and the statement of Plaintiff’s two children who were also present
at the time of the incident. Additionally, the hearing officer heard the live testimony of Plaintiff’s
mother. Moreover, after the hearing was adjourned, the hearing officer read the proposed restriction
to Plaintiff who was given an opportunity to, and did, comment on the restriction. The Due Process
Clause does not guarantee that the procedure will produce a correct decision. “It must be
remembered that even if a state decision does deprive an individual of life, [liberty], or property, and
even if that decision is erroneous, it does not necessarily follow that the decision violated that
individual’s right to due process.” Martinez v. California, 444 U.S. 277, 284 n.9 (1980). “[T]he
deprivation by state action of a constitutionally protected interest in ‘life, liberty or property’ is not
in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original). As a result,
even if Plaintiff had a liberty interest in his visitation with his mother, he received the process he
was due.
Finally, 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); Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001); 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 protectible liberty interest). Section 1983 is addressed to remedying violations of
federal law, not state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d
at 580-81.

-14-

To the extent that Plaintiff seeks to invoke this Court’s supplemental jurisdiction over
a state-law claim challenging the violation of prison policy respecting visitation, the Court declines
to exercise jurisdiction. In determining whether to retain supplemental jurisdiction, “[a] district
court should consider the interests of judicial economy and the avoidance of 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). Ordinarily, where a district court has exercised
jurisdiction over a state-law claim solely by virtue of supplemental jurisdiction and the associated
federal claims are dismissed prior to trial, the court will dismiss the remaining state-law claims. Id.
Dismissal, however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d
843, 850 (6th Cir. 2012). Here, the balance of the relevant considerations weighs against the
continued exercise of supplemental jurisdiction.
Based on the foregoing, Plaintiff fails to state a claim against Defendants Rowland
and McKee based on the visitor restriction permanently prohibiting his mother from visiting.
Plaintiff’s state-law claims for violation of MDOC policy will be dismissed without prejudice.
C.

Eighth Amendment: Excessive Force and Deliberate Indifference to
a Serious Medical Need

Plaintiff alleges that Defendant Pepper used excessive force in violation of the Eighth
Amendment when he broke Plaintiff’s wrist while escorting Plaintiff to administrative segregation.
Additionally, Plaintiff alleges that in violation of the Eighth Amendment, Defendant Pepper refused
to obtain medical treatment for Plaintiff after he broke Plaintiff’s wrist. Further, Plaintiff alleges
that Defendant Spurbeck visited Plaintiff at his cell at which time Plaintiff advised Defendant
Spurbeck that his wrist was broken and that he was in extreme pain. Nevertheless, Defendant
Spurbeck did not treat Plaintiff and falsified Plaintiff’s medical record by writing that Plaintiff had
-15-

denied the need for medical care. Finally, Plaintiff alleges that Defendant Wojciechowski failed to
give Plaintiff medical treatment or to obtain an x-ray of Plaintiff’s wrist, despite acknowledging that
Plaintiff’s wrist appeared to be, and felt, broken.
At this juncture, Plaintiff’s allegations regarding violations of his Eighth Amendment
rights by Defendants Pepper, Spurbeck and Wojciechowski warrant service of the complaint.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff fails to state a claim against Defendant Robinson. Additionally,
Plaintiff fails to state a claim against Defendants Rowland and McKee for violation of due process,
freedom of association and the Eighth Amendment in connection with the permanent visitor
restriction implemented against Plaintiff’s mother.
Accordingly, Defendant Robinson will be dismissed 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). Additionally,
Plaintiff’s claims for violations of his due process, freedom of association and Eighth Amendment
rights in connection with the permanent visitor restriction will be dismissed 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 will
serve the complaint against Defendants Rowland, McKee, Pepper, Wise and Benoit for retaliation
and against Defendants Pepper, Spurbeck and Wojciechowski for Eighth Amendment violations.
To the extent Plaintiff raises any state-law claims for violation of MDOC policy, those claims will
be dismissed without prejudice.
An Order consistent with this Opinion will be entered.

Dated: July 28, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
-16-