Harrison #156814 v. Mackie et al

Filing 14

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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

LARRY E. HARRISON,
Plaintiff,

Case No. 1:16-cv-879

v.

Honorable Robert J. Jonker

THOMAS MACKIE 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 Defendants Borma and Bassette. In addition, the Court will dismiss
Plaintiff’s claims against Defendants Murphy, Sikon, Smith and Sharp, except for his ADA/RA
claims (official capacity only) arising from the denial of access to the Talking Book Program and his

retaliation claim against Defendant Sikon. The Court also will order service of Plaintiff’s Eighth
Amendment medical claims against Defendants Crompton, Bookheimer, Mackie and Kenisson.
Factual Allegations
Plaintiff currently is incarcerated in the Macomb Correctional Facility, but the events
giving rise to his complaint occurred at the Oaks Correctional Facility (ECF). In his pro se
complaint,1 Plaintiff sues the following ECF employees: Warden Thomas Mackie, Dr. Robert
Crompton, Health Unit Manager Rick Bookheimer, Psychologist (unknown) Kenisson, Lieutenant
(unknown) Borma, Librarian John Murphy, Library Assistant (unknown) Sikon, Warden’s Assistant
Erick Smith, Deputy Warden Rick Sharp and Grievance Coordinator Todd Bassette. Plaintiff also
sues unknown parties named as “John Doe” and “Jane Doe.”
Plaintiff first claims that he is being denied proper medical treatment and
accommodation for his serious medical conditions. Plaintiff suffers from Hirschsprung’s Disease,
which he describes as a rare congenital condition that caused him to be born without an anus or
lower intestines. As a result of his condition, Plaintiff is unable to eat and digest most foods, and
experiences chronic severe pain and spontaneous defecation. Plaintiff alleges that he does not have
a colostomy bag, which creates health issues and causes him humiliation and degradation. Plaintiff
also suffers from Vilitigo, a skin abnormality that causes loss of pigmentation and extreme
sensitivity to direct sunlight. Plaintiff further alleges that he suffers from paralysis in his left hand
as the result of a botched surgery in 2008.
1

On October 14, 2016, the Court granted Plaintiff’s motion to amend the complaint and required him to file an
amended complaint within 28 days. The Court further stated that if Plaintiff failed to submit an amended complaint
within the time provided, the Court would review the original complaint (ECF No. 1) to determine whether it is subject
to dismissal under 28 U.S.C. §§ 1915(e)(2), 1915A and 42 U.S.C. § 1997e(c). Plaintiff did not submit an amended
complaint; consequently, the Court has screened the original complaint to determine if it 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.

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Plaintiff contends that Defendants Crompton and Bookheimer refused to refer him
to a Hirschsprung’s Disease specialist and ignored Plaintiff’s repeated complaints about his medical
condition. Defendant Bookheimer allegedly told Plaintiff that if he was not satisfied with the
medical treatment he was getting, he could pay for his own treatment. On another occasion,
Defendant Crompton allegedly told Plaintiff that he was a “cry baby” and ordered Plaintiff out of his
office. Defendants Crompton and Bookheimer also denied special accommodations for Plaintiff’s
handicap aide to clean his cell, for biohazard bags to properly dispose of feces and for extra towels
to clean himself. Plaintiff further claims that Defendant Crompton refused to provide a medical
detail for excused absences when his medical condition caused him to miss scheduled institutional
callouts. Without the medical detail, Plaintiff’s absence from a scheduled call-out resulted in
misconduct charges or removal from the callout list for that activity. Defendant Crompton also
denied Plaintiff a medical detail for the Library of Congress Talking Books Program.
On March 7, 2016, Plaintiff informed Defendant Bookheimer that Defendant
Crompton had failed to reorder his enemas and Lactoluse before going on vacation for a week.
Plaintiff was in unbearable pain from severe constipation and asked Bookheimer for medical
assistance. Defendant Bookheimer allegedly walked away saying, “That’s your problem now isn’t
it.” (Compl. ¶ 81, ECF No. 1, PageID.16.)
Plaintiff claims that as a result of having Vitiligo, he needs a full-brimmed medical
hat and sun block to protect him from sun exposure while out in the yard. Defendant Crompton
denied Plaintiff medical details for the hat and to allow Plaintiff to go to the day room instead of the
yard on days with intense sunlight. As a result, Plaintiff frequently is confined to his cell while other
prisoners are out in the yard.
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Plaintiff spoke to Defendant Mackie about Defendant Crompton’s failure to provide
him with proper medical care and accommodations.2 According to Plaintiff, Mackie instructed
Plaintiff to write him a short letter because he would not respond to a long one. When Plaintiff told
Mackie that the medical issues were “quite long,” he allegedly responded, “I guess that’s jes’ the way
it is. I won’t be responding.” (Compl. ¶92, PageID.18.) Plaintiff wrote a 2-page letter to Mackie,
but never received a response. Plaintiff alleges that Defendant Mackie had first-hand knowledge that
he was being denied proper medical treatment and failed to take corrective action.
Upon his transfer to ECF on November 25, 2014, Plaintiff’s Library of Congress
Talking Books equipment was confiscated by the property officer. According to Plaintiff, ECF did
not want prisoners at the facility to participate in the program. Plaintiff alleges that Defendants
Murphy, Sharp and Smith, engaged in a concerted effort to deny him access to the program. Plaintiff
contends that Defendant Murphy “went out of his way to retaliate against Plaintiff, without cause,
specifically because the ECF Oaks staff encouraged Defendant Murphy to interfere with Plaintiff’s
ability to continue to participate in the Library of Congress Talking Book Program.” (Compl. ¶ 142,
PageID.29). Defendant Murphy also violated Plaintiff’s constitutional rights when he took on the
role of health care staff by policing the standards for the Talking Book Program and caused Plaintiff
to be black-balled by the Library of Congress. Plaintiff alleges that Defendants Smith and Sharp
ignored proof of Plaintiff’s acceptance into the program and violated Plaintiff’s federal rights by
encouraging Defendant Murphy and health care staff to deny him the medical detail necessary for
him to possess the talking books equipment.

2

Plaintiff’s complaint appears to be missing a page that contains ¶¶88-91 concerning his conversation with
Defendant Mackie.

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Plaintiff further claims that “because he continued to fight for his right to participate
in the Library of Congress Talking Books Program, and continued to file grievances regarding the
matter, the ECF administration retaliated against [him] by alerting the Library of Congress that their
equipment had been altered by Plaintiff who they suspected remov[ed] a rechargeable battery from
one of the machines.” (Compl. ¶ 59, PageID.12.) Defendant Sikon allegedly wrote a false
misconduct charge against Plaintiff for destruction of state property on or about April 1, 2015.
Plaintiff denied the charges and claimed that he had not had access to the machines since November
2014. During the misconduct hearing, Defendant Borma refused Plaintiff’s request to see a photo
of the altered or damaged talking book machine, in violation of Plaintiff’s due process rights. Borma
found Plaintiff guilty of the offense and punished him with 10 days’ loss of privileges. Plaintiff
asserts violations of his First and Fourteenth Amendment rights, as well as the Rehabilitation Act
(RA) and the Americans with Disabilities Act (ADA), for denying him access to the Talking Book
Program.
In late December 2015, Plaintiff was called to a meeting with Defendants Sharp,
Crompton and Kenisson. During the meeting, which was conducted by Defendant Kenisson,
Plaintiff was lead to believe that he finally would be provided with necessary medical care and
treatment for his conditions. During a subsequent meeting with Defendant Kenisson, Plaintiff
complained that his medical treatment had not improved since the December meeting. Plaintiff
asked Kenisson to communicate with Defendant Crompton and act as his medical advocate.
Defendant Kenisson allegedly responded that while Plaintiff had valid medical complaints, she could
do nothing more than offer Plaintiff a forum to vent his frustrations. Plaintiff cancelled his
appointment with Kenisson, returned to his cell and wrote a grievance against her. Plaintiff contends
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that in light of the obvious deprivation of necessary medical treatment, Defendant Kenisson’s refusal
to assist him in obtaining treatment violated his Eighth Amendment rights. He further claims that
her “deceptive actions, aided the Defendant in an evil and deceptive act with malice intent to
continue to manipulate Plaintiff into curbing his grievance activity.” (Compl., ¶ 159, PageID.33.)
Plaintiff filed numerous grievances related to the claims set forth in his complaint.
He contends that Defendant Bassette continuously rejected his grievances or assigned them to
unqualified individuals to respond. Plaintiff maintains that the ECF medical staff was not qualified
to respond to his complex medical issues. He further claims that Bassette retaliated against him by
not sending him adequate copies of receipts at Step I, rejecting grievances and allowing staff
members to respond to grievances written against them, which also violated department policy.
For relief, Plaintiff seeks monetary damages.
Discussion
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)
(“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
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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); 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).
I.

Denial of Medical Treatment and Accommodation

Plaintiff contends that Defendants Crompton and Boockheimer denied him proper
medical treatment and accommodations for his medical conditions, which include Hirschsprung’s
Disease and Vitiligo. He further claims that Defendants Mackie and Kenisson had first-hand
knowledge of the denial of treatment and failed to take corrective action.
The Eighth Amendment prohibits the infliction of cruel and unusual punishment
against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates
prison authorities to provide medical care to incarcerated individuals, as a failure to provide such
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care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S.
102, 103-04 (1976). The Eighth Amendment is violated when a prison official is deliberately
indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the
plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 899 (6th Cir. 2004). If the plaintiff’s claim, however, is based on “the prison’s
failure to treat a condition adequately, or where the prisoner’s affliction is seemingly minor or
non-obvious,” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir. 2004), the plaintiff must
“place verifying medical evidence in the record to establish the detrimental effect of the delay in
medical treatment,” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation
marks omitted).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
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At this stage of the proceedings, Plaintiff’s allegations are sufficient order service of
Plaintiff’s Eighth Amendment medical claims against Defendants Crompton, Bookheimer, Mackie
and Kenisson.
II.

Talking Book Program

Plaintiff alleges that Defendants Murphy, Sharp and Smith, engaged in a concerted
effort to deny him access to the Talking Books Program. He contends that Defendant Murphy
retaliated against him by thwarting his participation in the program. Plaintiff further claims that as
a result of fighting to participate in the program and filing grievances, Defendant Sikon wrote a false
misconduct against him for destruction of state property for allegedly removing a rechargeable
battery from one of the talking book machines. Plaintiff asserts violations of his First and Fourteenth
Amendment rights, as well as the Rehabilitation Act (RA) and the Americans with Disabilities Act
(ADA), for denying him access to the Talking Book Program.
A.

Due Process

“Without a protected liberty or property interest, there can be no federal procedural
due process claim.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)). Contrary to his assertions,
Plaintiff does not have a federally cognizable liberty interest in participating in the Talking Book
Program. Federal courts consistently have found that prisoners have no constitutionally protected
liberty interest in prison vocational, rehabilitation, and educational programs based on the Fourteenth
Amendment. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (Due Process Clause not
implicated by prisoner classification and eligibility for rehabilitative programs, even where inmate
suffers “grievous loss”); Argue v. Hofmeyer, 80 F. App’x 427, 429 (6th Cir. 2003) (prisoners have
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no constitutional right to rehabilitation, education or jobs); Canterino v. Wilson, 869 F.2d 948, 95254 (6th Cir. 1989) (no constitutional right to rehabilitation); Ivey v. Wilson, 832 F.2d 950, 955 (6th
Cir. 1987) (“[N]o prisoner has a constitutional right to a particular job or to any job”); Antonelli v.
Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996) (participation in a rehabilitative program is a privilege
that the Due Process Clause does not guarantee); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)
(no constitutional right to rehabilitative services). The Talking Book Program is the type of
educational or rehabilitative program for which Plaintiff has no liberty interest. Consequently, he
fails to state a due process claim.
B.

Eighth Amendment

Plaintiff also fails to state an Eighth Amendment claim arising from Defendants’
alleged interference with his access to the Talking Book Program. 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 every unpleasant experience a prisoner might endure while
incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
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Amendment.” Ivey, 832 F.2d at 954. Talking Book Program simply is not the type of basic human
necessity that would give rise to an Eighth Amendment claim.

Consequently, his Eighth

Amendment claim will be dismissed.
C.

ADA/RA

Plaintiff alleges that depriving him of access to the Talking Book Program also
violates the ADA and the RA. Title II of the ADA provides, in pertinent part, that no qualified
individual with a disability shall, because of that disability, “be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132; see also Mingus v. Butler, 591 F.3d 474, 481-82 (6th Cir. 2010) (citing 42 U.S.C.
§ 12132). In order to state a claim under Title II of the ADA, Plaintiff must show: (1) that he is a
qualified individual with a disability; (2) that defendants are subject to the ADA; and (3) that he was
denied the opportunity to participate in or benefit from defendants’ services, programs, or activities,
or was otherwise discriminated against by defendants, by reason of plaintiff’s disability. See Tucker
v. Tennessee, 539 F.3d 526, 532-33 (6th Cir. 2008); see also Jones v. City of Monroe, 341 F.3d 474,
477 (6th Cir. 2003). The term “qualified individual with a disability” includes “an individual with
a disability who, with or without . . . the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or participation in programs or activities provided
by a public entity.”• 42 U.S.C.A. § 12131(2). Similarly, Section 504 of the Rehabilitation Act
protects any “otherwise qualified individual” from “be[ing] excluded from the participation in,
be[ing] denied the benefits of, or be[ing] subjected to discrimination” under specified programs
“solely by reason of her or his disability.”• 29 U.S.C. § 794(a). The Supreme Court has held that
Title II of the ADA applies to state prisons and inmates. Penn. Dep’t of Corr. v. Yeskey, 524 U.S.
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206, 210-12 (1998) (noting that the phrase “services, programs, or activities” in § 12132 includes
recreational, medical, educational, and vocational prison programs). The proper defendant under a
Title II claim is the public entity or an official acting in his official capacity. Carten v. Kent State
Univ., 282 F.3d 391, 396-97 (6th Cir. 2002). Plaintiff has named Defendants Murphy, Sikon, Smith
and Sharp in both their official and individual capacities. The State of Michigan (acting through the
MDOC) is not necessarily immune from Plaintiff’s claims under the ADA. The ADA “validly
abrogates state sovereign immunity” for “conduct that actually violates the Fourteenth
Amendment[.]”• United States v. Georgia, 546 U.S. 151, 159 (2006); see also Mingus, 591 F.3d
at 482. If conduct violates the ADA but not the Fourteenth Amendment, then the Court must
determine whether the ADA validly abrogates state sovereign immunity. Id. At this stage of the
proceedings, the Court will presume that the ADA validly abrogates state sovereign immunity for
Plaintiff’s ADA claims. Upon review, therefore, the Court concludes that Plaintiff’s allegations are
sufficient to warrant service of Plaintiff’s ADA claims on Defendants Murphy, Sikon, Smith and
Sharp in their official capacities. However, neither Title II of the ADA nor the RA provides for suit
against a public official acting in his or her individual capacity. Everson v. Leis, 556 F.3d 484, 501
n. 7 (6th Cir. 2009) (ADA); Skibbe v. Mich. Dep’t of Corr., No. 1:05-cv-175, 2006 WL 625869, at
*3 (W.D. Mich. Mar. 9, 2006) (holding that because individual officials are not public entities or
programs, they are not liable in their personal capacities under either the ADA or RA). The Court,
therefore, will dismiss Plaintiff’s individual ADA and RA claims against these Defendants.
D.

Retaliation

Plaintiff contends that Defendant Murphy retaliated against him by thwarting his
access to the Talking Book Program. Specifically, Plaintiff alleges that, “Defendant Murphy went
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out of his way to retaliate against Plaintiff, without cause, specifically because the ECF Oaks staff
encouraged Defendant Murphy to interfere with Plaintiff’s ability to continue to participate in the
Library of Congress Talking Book Program.” (Compl., ¶ 142, PageID.29). Plaintiff also alleges that
because he continued to fight for his right to participate in the program and filed grievances
regarding the matter, Defendant Sikon wrote a false misconduct against him for destruction of state
property for allegedly removing a rechargeable battery from one of the talking book machines.
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)).
Plaintiff’s claim against Defendant Murphy fails at the first step because he does not
allege that he was engaged in protected conduct. The only conduct alleged by Plaintiff was his
participation in the Talking Books Program. As previously discussed, participation in that program
is not constitutionally protected conduct. Plaintiff, therefore, fails to state a retaliation claim against
Defendant Murphy.
With regard to Plaintiff’s retaliation claim against Defendant Sikon, the filing of a
prison grievance is constitutionally protected conduct for which a prisoner cannot be subjected to
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retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). At this stage of
proceedings, Plaintiff’s allegations also are sufficient to satisfy the remaining requirements for a
retaliation claim against Defendant Sikon. Consequently, the Court will order service of the claim.
III.

Misconduct Charge

Plaintiff contends that his due process rights were violated when he was charged and
convicted for a false misconduct for destruction of state property written by Defendant Sikon.
Following an administrative hearing, during which Plaintiff allegedly was denied due process,
Defendant Borma found Plaintiff guilty of the offense. Plaintiff was punished with 10 days loss of
privileges.
A prisoner’s ability to challenge a prison misconduct conviction depends on whether
the convictions implicated any liberty interest. A prisoner does not have a protected liberty interest
in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of his
sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 486-87 (1995).
Under Michigan Department of Corrections Policy Directive 03.03.105, ¶ B, a Class I misconduct
is a “major” misconduct and Class II and III misconducts are “minor” misconducts. The policy
further provides that prisoners are deprived of good time or disciplinary credits only when they are
found guilty of a Class I misconduct. (See Policy Directive 03.03.105, ¶ AAAA). All Class I
misconduct hearings shall be conducted by hearing officers from the Department of Licensing and
Regulatory Affairs (LARA), while Class II hearings are conducted by a supervisory level staff
member other than the person who issued the Misconduct Report and Class III hearinga may be

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conducted by any staff member other than the person who issued the Misconduct Report. (Id. at ¶M,
KK, YY.)
Because Plaintiff’s misconduct hearing was conducted by Defendant Lieutenant
Borma, an ECF staff member, rather than a LARA hearing officer, it appears that Plaintiff was
convicted of a Class II or III minor misconduct. Moreover, Plaintiff does not allege that he was
denied good time or disciplinary credits as a result of his misconduct conviction. The Sixth Circuit
routinely has held that misconduct convictions that do not result in the loss of good time are not
atypical and significant deprivations and therefore do not implicate due process. See, e.g., Ingram
v. Jewell, No. 03-1935, 2004 WL 619428, at *2 (6th Cir. Mar. 24, 2004) (a fourteen-day loss of
privileges did not deprive prisoner of a protected liberty interest because the sanctions neither
extended the duration of his sentence nor imposed an atypical, significant deprivation); Green v.
Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir. June 23, 2000) (“Green had no due process
liberty interest in the minor misconduct hearing because he did not allege any punishment that
affected the duration of his confinement, or that constituted an atypical and significant hardship.”);
Staffney v. Allen, No. 98-1880, 1999 WL 617967, at *2 (6th Cir. Aug.12, 1999) (“Staffney suffered
no loss of good time credits as a result of his minor misconduct conviction and the sanctions he
received do not represent a liberty interest recognized by the constitution.”). Plaintiff, therefore, fails
to state a due process claim arising from his minor misconduct conviction.
Even if Plaintiff was convicted of Class I misconducts, he fails to state a due process
claim. 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
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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
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).
The Sixth Circuit has examined Michigan statutory law, as it relates to the creation
and forfeiture of disciplinary credits3 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) (holding that “plaintiff’s disciplinary hearing and major misconduct sanction does

3

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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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).
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. at 472; see also Ingram v. Jewell, 94 F.
App’x 271, 273 (6th Cir. 2004) (holding that 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). Plaintiff has not identified any significant deprivation arising from his misconduct
convictions. Accordingly, he fails to state a viable due process claim against Defendants Sikon and
Borma arising from the misconduct charge.
IV.

Grievance Process

Plaintiff claims that Defendant Bassette, the grievance coordinator, continuously
rejected his grievances or assigned them to unqualified individuals for a response. He further claims
that Bassette retaliated against him by not sending him adequate copies of receipts at Step I, rejecting
Plaintiff’s grievances and allowing staff members to respond to grievances written against them,
which also violated MDOC policy.
A.

Due Process

Plaintiff has no due process right to file a prison grievance. The courts repeatedly
have held that there exists no constitutionally protected due process right to an effective prison
grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of
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Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir.
2003); Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 993562, 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) (collecting cases). Michigan law
does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238,
249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); 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 Bassette’s alleged conduct did not deprive him of due process.
Moreover, Defendant’s alleged violation of the grievance 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.
B.

Retaliation

Even assuming Plaintiff can satisfy the first two requirements for a retaliation claim,
his allegations concerning causation are wholly conclusory. It is well recognized that “retaliation”
is easy to allege and that it can seldom be demonstrated by direct evidence. See Harbin-Bey v.
Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega
v. DeRobertis, 598 F. Supp. 501, 506 (C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985).
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“[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108.
“[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient
to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826
F.2d 1534, 1538-39 (6th Cir. 1987)); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Skinner
v. Bolden, 89 F. App’x 579, 579-80 (6th Cir. 2004) (without more, conclusory allegations of
temporal proximity are not sufficient to show a retaliatory motive). Plaintiff merely alleges the
ultimate fact of retaliation in this action. He has not presented any facts to support his conclusion
that Defendant Bassette intended to retaliate against him for filing grievances. Accordingly, his
speculative allegations fails to state a claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Borma and Bassette 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). In addition, the Court
will dismiss Plaintiff’s complaint for failure to state a claim against Defendants Murphy, Sikon,
Smith and Sharp, except for his ADA/RA claims (official capacity only) arising from the denial of
access to the Talking Book Program and his retaliation claim against Defendant Sikon. The Court
also will order service of Plaintiff’s Eighth Amendment medical claims against Defendants
Crompton, Bookheimer, Mackie and Kenisson.
An Order consistent with this Opinion will be entered.

Dated:

March 7, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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