Black #361733 v. Scott et al

Filing 12

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

TODD R. BLACK,
Plaintiff,

Case No. 1:16-cv-848

v.

Honorable Robert Holmes Bell

CARMEN D. PALMER et al.,
Defendants.
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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, Plaintiff’s action will be dismissed for failure to state
a claim.

Factual Allegations
Plaintiff Todd R. Black presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Oaks Correctional Facility, though the actions about which he complains
occurred while he was housed at the Michigan Reformatory (RMI). He sues the following RMI
officials: Warden Carmen D. Palmer; Deputy Wardens Sam Schooley and Gregory Schipper;
Assistant Resident Unit Supervisor (ARUS) C. Prince; Sergeant J. Miller; and Grievance
Coordinator K. Miller.
Plaintiff alleges in his amended complaint1 that, on March 8, 2015, he asked to be
taken into protective custody because he owed $100.00 in gambling debts to other prisoners, but had
no funds to pay them. He believed that he was in danger of being injured or killed for failing to pay.
Plaintiff was placed in segregation during the pendency of an investigation. He complains that,
under MDOC policy, he should only have had to stay in segregation for seven business days, at
which time the investigation should have been complete. However, Defendant Price did not conduct
the investigation until March 28, 2015.
Plaintiff allegedly spoke to the resident unit manager and the inspector, and they told
him to file a grievance. Plaintiff filed a grievance, demanding $100.00 per day for his extended
placement in segregation. Defendant Schooley reviewed the grievance at Step I of the grievance
process. Schooley concluded that the facility had violated policy by exceeding the time limit for

1
On September 23, 2016, the Court issued an order directing Plaintiff to file an amended complaint on the form
within 28 days. In a motion filed on October 19, 2016, Plaintiff sought an extension of time to submit the amended
complaint (ECF No. 10). Plaintiff has since filed his amended complaint. The Court therefore will grant the extension
of time and consider the amended petition as timely filed.

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investigation. Schooley noted in the grievance response that measures had been taken to prevent
such delays from occurring in the future. (Attach. to Compl., ECF No. 1, PageID.30.)
Following their investigation, Defendants Schooley and Skipper concluded that
Plaintiff’s allegations that certain identified prisoners had threatened to stab him could not be
substantiated. They stated in their report that, while Plaintiff undoubtedly owed the money, they
were not persuaded that Plaintiff was at physical risk that would warrant transfer. They noted that
they had searched the cells of the other prisoners for contraband and weapons. (Attach. to Compl.,
ECF No. 1, PageID.9.) As a result of Defendants’ investigation and conclusions, Plaintiff was
transferred back to Level IV, general population. (Id.)
On March 30, 2015, when Plaintiff was being transferred out of segregation, he was
issued a misconduct ticket. While Plaintiff does not specify in his complaint the nature of the ticket,
he attaches the misconduct hearing report, as well as the charging document. (See Attach. to Compl.,
ECF No.1, PageID.26, 40.) From those documents, it appears that Plaintiff was charged with a
Class I misconduct for threatening behavior. The charge indicates that Plaintiff initially disobeyed
a direct order to leave segregation. He subsequently agreed to leave, indicating that he would go
back to general population and “swing on someone,” in order to get transferred. (Id., PageID.40.)
Plaintiff apparently responded to the ticket by saying that he was not guilty because he had stopped
taking his psychiatric medications and says things he did not mean to say. According to the
misconduct report, Plaintiff intended to say that “he was going out to take his lickens.” (Id.,
PageID.26.) The hearing officer found Plaintiff guilty of the charged misconduct on April 9, 2015,
and Plaintiff was sanctioned to ten days’ detention, from April 9 to April 19, 2015. (Id.)

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Plaintiff contends that Defendants violated his right to due process when they failed
to comply with prison policy by taking too long to investigate his request for protective custody. He
arguably implies but does not expressly allege that Defendants violated his rights under the Eighth
Amendment by returning him to the general population. Finally, he appears to complain that he
should not have been convicted of the misconduct ticket or any other misconduct ticket. He alleges
that Defendant Palmer is responsible for the problems, because she is in charge of the prison and sets
the operational and segregation procedures. He also contends that Defendants Schooley and Skipper
are responsible, as they are in charge of security classification placement. In addition, he suggests
that Defendant ARUS Prince is liable, because he is the counselor for the segregation unit and that
Defendant Sgt. J. Miller is liable, because he makes sure that things are moving safely. Plaintiff
further alleges that Defendant K. Miller, as grievance coordinator, is responsible for grievances that
are filed.
For relief, Plaintiff seeks $100.00 per day for the extra days spent in segregation
beyond those authorized by policy. He also seeks to have expunged all misconduct tickets incurred
between March 8, 2015 and October 2016, together with transfer to a Level-I facility.
Discussion
I.

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, 47 (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)
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(“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.” Iqbal, 556 U.S. 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
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); 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.

Supervisory Liability

Plaintiff’s allegations against Defendants Palmer, Prince, J. Miller and K. Miller are
limited to their oversight responsibilities or responsibilities to handle prison grievances.
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Government officials may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; 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, 575-76 (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 576; Greene, 310 F.3d at 899; Summers v. Leis,
368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not 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, 556 U.S. at 676. Plaintiff has failed to allege that Defendants Palmer,
Prince, J. Miller and K. Miller engaged in any active unconstitutional behavior. Accordingly, he
fails to state a claim against them.
B.

Due Process

In his principal set of allegations, Plaintiff contends that Defendants violated prison
policy and therefore his due process rights by taking more than ten days to investigate his claimed
need for protective custody. He also arguably suggests that his conviction on the misconduct charge
violated due process.
Defendants’ 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,
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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 58081.
Moreover, being kept in segregation from March 8 to March 30, 2015 did not
implicate Plaintiff’s right to due process. “The Fourteenth Amendment protects an individual from
deprivation of life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d
795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due 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.”
Ky. 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 established the standard for determining when a state-created right
creates a federally cognizable liberty interest protected by the Due Process Clause. According to the
Sandin Court, 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.” Sandin, 515
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U.S. 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). The Sandin Court concluded that mere placement in
administrative segregation did not implicate a liberty interest because the segregation at issue in that
case did not impose an atypical and significant hardship. Sandin, 515 U.S. at 484; Wilkinson v.
Austin, 545 U.S. 209, 222-23 (2005).
Here, Plaintiff was kept in segregation at RMI for 22 days, less than the time found
not to create a liberty interest in Sandin. Moreover, Plaintiff utterly fails to allege that segregation
at RMI was unusual, much less that it was an atypical and significant hardship relative to the
segregation in issue in Sandin. Under these circumstances, Plaintiff fails to allege that his 22-day
segregation rises to the level of a due process violation.
Plaintiff also fails to state a due process claim in relation to his misconduct
conviction. A prisoner’s ability to challenge a prison misconduct conviction depends on whether
the convictions implicated any 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 good-time 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
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
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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 convictions 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 of 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. Id.
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, Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011); Wilson v.
Rapelje, No. 09-13030, 2010 WL 5491196, at * 4 (E.D. Mich. Nov. 24, 2010) (Report &
Recommendation) (holding that “plaintiff’s disciplinary hearing and major misconduct sanction does
not implicate the Fourteenth Amendment Due Process Clause”), adopted as judgment of court, 2011
WL 5491196 (Jan. 4, 2011). In the absence of a demonstrated liberty interest, Plaintiff has no dueprocess claim based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 46162 (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, 515 U.S. 472. Plaintiff has not identified any
significant deprivation arising from his convictions. Plaintiff received 10 days’ detention as a
sanction for his misconduct. Under the terms of Sandin itself, even placement in segregation for 30
days does not amount to an atypical and significant deprivation. Placement in detention for 10 days
therefore necessarily falls short. Unless a prison misconduct conviction results in an extension of
the duration of a prisoner’s sentence or some other atypical hardship, a due-process claim fails.
Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004). Plaintiff cannot make the requisite showing.
C.

Eighth Amendment

Although Plaintiff does not directly raise an Eighth Amendment claim, he appears
to allege that Defendants Schooley and Skipper, in deciding to return Plaintiff to general population
on March 30, 2015, violated the Eighth Amendment.

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 prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot
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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 its prohibition of “cruel and unusual punishments,” the Eighth Amendment places
restraints on prison officials, directing that they may not use excessive physical force against
prisoners and must also “take reasonable measures to guarantee the safety of the inmates.” Farmer
v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)).
To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to
a prisoner, plaintiffs must show that the prison officials acted with “deliberate indifference” to a
substantial risk that the defendant would cause a prisoner serious harm. Farmer, 511 U.S. at 834;
Helling v. McKinney, 509 U.S. 25, 32 (1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.
1997); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996); Taylor v. Mich. Dep’t of
Corr. 69 F.3d 76, 79 (6th Cir. 1995). See Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001).
Plaintiff’s allegations fall short of stating a failure-to-protect claim against Defendants
Schooley and Skipper. According to the amended complaint, Plaintiff was taken into segregation
when he stated that he was afraid for his safety, and he remained in segregation for more that three
weeks. During that time, Defendants conducted an investigation into his concerns, including
investigating the individuals Plaintiff identified. The fact that Defendants concluded that the risks
to Plaintiff could be managed in general population does not demonstrate deliberate indifference.
Plaintiff’s complaint is devoid of allegations concerning the degree of risk he faced upon his return
to general population, and he makes no allegations that he was ever threatened or attacked after his
return. As a result, although Plaintiff may have disagreed with Defendants’ decision to return him
to general population, Plaintiff fails to allege facts suggesting that Defendants were deliberately
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indifferent to a substantial risk of serious harm. Plaintiff therefore fails to state an Eighth
Amendment claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action 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 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
$505.00 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 $505.00 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.

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

Dated: November 10, 2016

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