Baldwin #535144 v. Burt et al
OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-962
Honorable Janet T. Neff
SHERRY BURT et al.,
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
Plaintiff Timothy Baldwin presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Muskegon Correctional Facility (MCF). He sues the following MCF
officials: Warden Sherry Burt; maintenance worker Norm Cunningham; former Inspector and
current Deputy Warden Paul Davis; Sergeant Gregory Gardner; and Hearing Investigator Laurie
Goodno. He also sues MDOC Administrative Hearing Officer Douglas J. Pallas, who is assigned
In his lengthy complaint, Plaintiff alleges that he purchased a pair of boots from
another prisoner while he was housed at the Kinross Correctional Facility in October 2008. From
that time until May 29, 2014, the boots remained part of Plaintiff’s property and were searched
during multiple prison transfers and dozens of cell searches. Unbeknownst to Plaintiff, the
manufacturer of the boots had inserted a bamboo sole support in the heel of the boots during
manufacture. During a mass shake-down on May 29, 2014, Defendant Cunningham, working under
the supervision of Defendant Davis, peeled up the sole padding of Plaintiff’s right boot and
discovered a piece of bamboo. Defendants Cunningham and Davis characterized the item as a
“prison made shank.” (Compl., ECF No. 1, PageID.10.) Davis instructed Cunningham to write a
Class I misconduct ticket against Plaintiff for possession of the weapon. He also directed that both
the boots and Plaintiff’s hobbycraft materials, out of which the shank was believed to have been
fabricated, be removed from the cell as contraband. Cunningham issued both the misconduct ticket
and a contraband removal sheet. Plaintiff complains that both the contraband removal sheet and the
misconduct ticket were improperly completed, as they did not contain all necessary information,
particularly the location at which the items were found.
Defendant Gardner reviewed the misconduct ticket with Plaintiff on June 5, 2014.
Gardner, however, had altered the ticket, changing the charge from possession of dangerous
contraband to possession of a weapon. Plaintiff contends that the alteration to the charge violated
MICH. DEP’T OF CORR., Policy Directive 03.03.105 20 MM. On June 6, 2014, Defendant Pallas
conducted a formal misconduct hearing on the ticket, as modified by Gardner. Upon consideration
of the evidence, Pallas rejected Plaintiff’s claim that the ticket had been improperly altered and
found Plaintiff guilty of possession of a weapon. Pallas sanctioned Plaintiff to 10 additional days’
segregation and 15 days’ loss of privileges.
Plaintiff was released from segregation on June 16, 2014. On June 19, Plaintiff was
told to report to the control center to see Sergeant Timothy Gonzalez. Gonzalez returned Plaintiff’s
boots to him. Plaintiff noticed that his right boot sole had been completely removed and part of his
left boot had been peeled up. Plaintiff returned to his cell with his boots. Curious about why
Cunningham and Davis would have set him up on a misconduct charge, Plaintiff examined his left
boot, using his hobbycraft scissors to partially pry up his left boot sole. When he did so, he
discovered that the object he had been shown as the one taken from his right boot matched an object
in the left boot sole.
Plaintiff immediately carried his boots to Prison Counselor Tommie D. Calvin. He
explained that the presence of the object in the left boot demonstrated that the objects were not
weapons, but were instead part of the support structure of the boot. Calvin promptly called Deputy
Warden Shane Jackson to advise him of the discovery. Jackson told Calvin to have Plaintiff raise
the issue and introduce the evidence in an appeal of his misconduct conviction. Calvin then tried
to give the boots back to Plaintiff, but Plaintiff refused, indicating that he feared being found in
possession of a boot containing the sole supporter, because it could lead to him again being
convicted of making weapons. Calvin therefore kept the boots.
The following day, on June 20, 2014, Plaintiff saw Defendants Davis and Burt,
together with a representative from Lansing, performing a walk-through in Unit 2. Plaintiff rushed
downstairs, catching Defendant Burt and the others at the front desk, where Officer Calvin was
working. Plaintiff approached Defendant Burt about the situation, explaining what had happened
with the boots. Calvin went into the office and produced the boots. As a result, Burt instructed
Calvin to remove the arch support from the left boot. She also instructed Calvin to call to have
Plaintiff removed from sanctions and reinstated in his job. Defendant Burt allegedly told Plaintiff
that she would begin the process of removing the misconduct report from Plaintiff’s record.
Calvin called Dave Brazee to convey Burt’s order to have Plaintiff reinstated. Brazee
came to Unit 2 to take possession of the sole stiffener, and he informed Calvin that Plaintiff could
start working again. Brazee also contacted the classification director and had Plaintiff’s job
Plaintiff anticipated receiving documentation that the misconduct report, which could
affect his parole, had been removed from his file. Plaintiff spoke to Defendant Burt during her
rounds in late June and early July. Plaintiff concluded from those conversations that Burt was not
pursuing removal of the misconduct report. In fact, during those conversations, Burt suggested that,
since Plaintiff had been the one to show her the boots, Plaintiff could have inserted the wooden
shank himself. Plaintiff alleges that prison policy does not permit Burt to only partially change
misconduct sanctions, so she was required to remove the misconduct report.
Plaintiff filed a request for rehearing on June 30, 2014, explaining that there had not
been a sufficient investigation before his conviction and that Plaintiff himself had not even known
what the alleged weapon was supposed to have been until he received the hearing report four days
after he was found guilty. On August 14, 2014, MDOC Prisoner Affairs Director Richard Russell
denied the request for rehearing, finding that Plaintiff had received all of the process set forth in
prison policy and that insufficient evidence existed to support granting rehearing.
On October 3, 2014, Correctional Officer Dudek, working in the property room,
received a response from Howard Herskovitz, a representative of the manufacturer of the boots.
Herskovitz stated that the boots sent to prisons were supposed to be shankless, but if a shank had
been placed in the boots in error, it would have been made from bamboo, not metal or plastic.
Dudek told Defendant Hearings Investigator Goodno that he had never come across any other
incident of a wooden shank in the sole of a boot, and he expressed his belief that a prisoner would
not be aware of the presence of the shank unless he took the boot apart.
On October 17, 2014, Plaintiff sought judicial review of the administrative decision
in the Muskegon County Circuit Court. He argued that he was prevented from acquiring and
presenting relevant evidence by an external impediment, since he did not see the ostensible weapon
prior to the hearing, did not have an opportunity to examine the boots until after the hearing, and
could not contact the shoe manufacturer for supporting evidence. The circuit court denied his appeal
on February 13, 2015. (ECF No. 1-1, PageID. 147-153.) Petitioner sought leave to appeal to the
Michigan Court of Appeals. On August 4, 2015, the court of appeals, in lieu granting leave to
appeal, vacated the circuit court’s order and remanded the case to the MDOC for a rehearing. See
Baldwin v. Mich. Dep’t of Corr., No. 326972 (Mich. Ct. App. Aug. 4, 2015), http://publicdocs.
The Michigan Department of Corrections scheduled a rehearing on October 21, 2015.
Following the rehearing, Hearing Officer Marutiak overturned the prior misconduct conviction and
found Plaintiff not guilty of the misconduct charge. (10/21/15 Hr’g Report, ECF No. 1-2, Page
ID.51-53.) The MDOC issued a notice that the misconduct had been expunged on November 3,
Plaintiff contends that Defendant Burt violated his rights under the Fifth and
Fourteenth Amendments by deliberately failing to investigate, preserve evidence and ensure that
Plaintiff received due process, as well as by failing to eliminate the misconduct after she had
concluded that he should have his job reinstated. He argues that Defendant Cunningham deprived
him of due process by lying to Defendant Davis about finding a shank in Plaintiff’s right boot. He
also argues that Davis violated due process by falsely claiming the Plaintiff made a weapon from
his hobbycraft materials. In addition, Plaintiff alleges that Defendants Cunningham and Gardner
deprived him of due process by failing to accurately prepare the charges so that Plaintiff could know
what allegations he was defending. Further, he contends that Gardner violated due process by
altering the misconduct charge, in violation of policy. Plaintiff also contends that Defendant
Goodno failed to properly investigate the charges. Finally, he contends that Defendant Pallas
violated Plaintiff’s right to due process by overlooking evidence and denying Plaintiff a fair hearing.
Plaintiff seeks declaratory and injunctive relief, together with compensatory and
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. Id.; 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 pleader is entitled to
relief.” Id. 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
Plaintiff first argues that a number of the Defendants’ actions violated prison policy.
Claims under § 1983 can only be brought for “deprivation of rights secured by the constitution and
laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983
does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants
violated state law therefore fails to state a claim under § 1983.
Plaintiff next claims that the major misconduct charges against him were false and
inadequately investigated and that he was deprived of the procedural protections to which he was
entitled because of inaccurate charging and processing. He therefore claims that he was deprived
of his right to due process under the Fifth and Fourteenth Amendments.
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 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
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 credits1 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. Id. at
912; accord Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011); Wilson v. Rapelje, No. 0913030, 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 due-process claim
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).
based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir.
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). 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 has not identified any significant deprivation arising from his convictions.
He was placed in administrative segregation only briefly, and he lost four days’ privileges. The
Sandin Court concluded that temporary 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).
Loss of privileges for any period of days is neither atypical nor significant.
In sum, because Plaintiff’s misconduct conviction neither affected the duration of his
confinement nor resulted in a significant, atypical deprivation, Plaintiff was not deprived of a liberty
interest by any Defendant.
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
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(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.
Dated: September 22, 2016
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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