Stein #219903 v. Whitinger et al
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
RICHARD DEAN STEIN,
Case No. 1:16-cv-1015
Honorable Robert Holmes Bell
G. WHITINGER 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 is presently incarcerated in the Baraga Correctional Facility in Baraga,
Michigan. The incidents he describes in the complaint, however, occurred while he was incarcerated
in the Michigan Reformatory in Ionia, Michigan. On July 4 2015, Plaintiff was placed in temporary
segregation at the direction of Defendant Lieutenant G. Whitinger. He was released four days later.
Claim 1-Defendant Whitinger
Plaintiff complains that Defendant Whitinger placed him in segregation without
notice or justification on July 4, 2015.
Claim 2-Defendant Schooley
Plaintiff filed a grievance (ECF No. 1, PageID.12), claiming: (1) Defendant
Whitinger accused Plaintiff of receiving drugs and delivering them to Plaintiff’s nephew; (2)
Plaintiff claimed he knew nothing about it; and (3) Defendant Whitinger placed him in segregation.
On July 10, 2015, Defendant Deputy Warden S. Schooley reviewed the response to Plaintiff’s
grievance. (Id.) He rejected the grievance noting that Plaintiff was placed into temporary
segregation in accordance with Michigan Department of Corrections (MDOC) Policy Directive
04.05.120 ¶J.1 (Id., PageID.10, 12-13.) Plaintiff contends that Defendant Schooley did not properly
investigate his grievance as required by MDOC Policy Directive 03.02.130 ¶X.2
Claim 3-Defendant Miller
Although Defendant Schooley reviewed the response, it was Defendant Grievance
Coordinator K. Miller who actually responded. (Id., PageID.11-13.) Accordingly, Plaintiff contends
Defendant Miller also failed to comply with MDOC policy directives and the law when he
responded to Plaintiff’s grievance.
Claim 4-Defendant Palmer
Plaintiff appealed the step I grievance response. (ECF No. 1, PageID.15-17.) His
appeal asserted that the real reason Defendants Miller and Schooley rejected his grievance is that
they were covering for Defendant Whitinger’s improper placement of Plaintiff in segregation.
The referenced policy directive provides:
Temporary segregation is used when it is necessary to remove a prisoner from general population
pending a hearing for a major/Class I misconduct violation, classification to administrative
segregation, pending an investigation of a prisoner’s need for protection, or transfer. A prisoner's
placement in temporary segregation, including the reason for such placement, shall be documented
in writing and approved by the Warden or designee within 72 hours after the prisoner's placement in
temporary segregation. The prisoner does not have to be provided written notice of placement in
temporary segregation; however, once it becomes the intent to classify the prisoner to administrative
segregation, a Notice of Intent to Classify to Segregation (CSJ-447) shall be issued as set forth in
MICH. DEP’T OF CORR., Policy Directive 04.05.120 ¶J.
With respect to rejected grievances, the referenced policy provides:
After receipt of the grievance, the Grievance Coordinator shall determine if the grievance should be
rejected pursuant to this policy and, if so, sign and return the grievance to the grievant with an
explanation as to why it was rejected. In CFA, if the grievance is being rejected, the Grievance
Coordinator's supervisor shall review the reason for the rejection to ensure it is in accordance with
policy; both the Grievance Coordinator and the supervisor shall sign the grievance before returning
the grievance to the grievant.
MICH. DEP’T of CORR., Policy Directive 03.02.130 ¶X.
Defendant Warden Carmen Palmer responded to the appeal on July 30, 2015. (Id., PageID.16-17.)
Defendant Palmer stated that she found no impropriety or violation of policy. (Id. PageID.17.)
Plaintiff contends that Defendant Palmer failed to adequately investigate his grievance appeal.
Claim 5-Defendant Sissell
On July 5, 2015, while Plaintiff was in segregation, he asked Defendant Sergeant
Sissell why he was in administrative segregation. During his investigation, Defendant Sissell was
asked to review a Notice of Intent to Conduct an Administrative Hearing (NOI) with Plaintiff. The
NOI, (ECF No. 1, PageID.20), indicated that an administrative hearing was necessary to determine
proper placement for Plaintiff after an investigation of the accusation referenced in Plaintiff’s
grievance. Plaintiff signed the NOI. (Id.) Plaintiff states: “I believe that Sergeant Sissell’s actions
were harmless, but instead he knew someone wasn’t playing fair ball. Sergeant Sissell should [have]
reported this matter to higher ranking officials, Inspector, Warden.” (Id., PageID.19.)
Claim 6-Defendant Russell
Plaintiff appealed Defendant Palmer’s step II grievance response. Plaintiff claimed
that Defendant Palmer’s reliance on the 72 hour time period in MDOC Policy Directive 04.05.120
¶J could not excuse his four day stay in segregation.3 (ECF No. 1, PageID.16.) Defendant Richard
C. Russell, Manager of the Grievance Section in the Office of Legal Affairs for the Michigan
Department of Corrections responded to Plaintiff grievance at Step III on October 21, 2015. (ECF
No. 1, PageID.22.) Defendant Russell upheld the rejection. (Id.) Plaintiff has filed suit against
Defendant Russell for his unsatisfactory response to Plaintiff’s grievance appeal.
Plaintiff appears to misread the policy directive to require his release in 72 hours. The only event required to
occur within 72 hours is that the “reason . . . for placement in temporary segregation . . . be documented in writing and
approved by the Warden or designee . . . .” MICH. DEP’T OF CORR., Policy Directive 04.05.120 ¶J. There is no
requirement that the prisoner receive any written notice with regard to placement in temporary segregation. Id.
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)
(“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)
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
Violations of Michigan Department of Corrections policies
Throughout his complaint, Plaintiff references the defendants’ failures to follow
departmental policies. 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). Defendants’
alleged failures to comply with an administrative rule or policy do not themselves 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. 9423347, 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). Simply claiming violations of Michigan Department of Corrections policies does
not suffice to state a claim under § 1983.
Plaintiff makes a passing reference to due process violations by Defendant Whitinger
in Claim 1 and in his Level I grievance. Beyond that, however, Plaintiff does not tie the allegations
in his six claims to a particular constitutional right. He notes that defendants violated policy and
suggests that there was no reason to place him in temporary segregation. The only other reference
to the constitution is in a string cite of federal cases under “Section III. Statement of Claims” on the
prisoner civil rights complaint form. (ECF No. 1, PageID.3.) Sprinkled in the string cite of cases
are the following terms: “U.S. Constitution Amendment Six, U.S. Constitution Amendment 14.
Abuse of Position: [case cites] Misuse of power. [case cites] First Amendment Right [case and
statutory cites] U.S.C.A. Const. Amend 14 [subject matter “key” cites4 and case cites.]” (Id.) Each
of the referenced constitutional violations is addressed below.
No matter how liberally the Court construes these references, there does not appear
to be any claim for violation of Plaintiff’s Sixth Amendment rights. It is to “‘criminal prosecutions’
. . . alone [that] the explicit guarantees of the Sixth Amendment are applicable.” Kirby v. Illinois,
406 U.S. 682, 690 (1972). At most there was an investigation in anticipation of a prison disciplinary
proceeding, but “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
U.S. 539, 556 (1974). Plaintiff’s claim for a violation of the Sixth Amendment here is frivolous.
The First Amendment provides: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. CONST. amend. I. “[A] prison inmate retains those
First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
Plaintiff’s free speech rights are “uncontrovertedly limited by virtue of [Plaintiff’s] incarceration.”
Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th Cir. 1999). Here Plaintiff offers nothing to provide
notice to the defendants as to the nature of his First Amendment claim. His mere reference to the
First Amendment is insufficient to state a claim. Ashcroft, 556 U.S. at 678 (“Threadbare recitals of
The key cite topics are: “Constitutional Law Key 272(2), Prison Key 13(7), Constitutional Law Key 257[.]”
The key numbers do not match up to the current West Key Number System.
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
Plaintiff contends that Defendant Whitinger deprived Plaintiff of his liberty by
placing him in temporary segregation without due process of law. To allege a procedural due
process claim, Plaintiff must identify a protected liberty or property interest of which he has been
deprived. Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (“Without a
protected liberty or property interest, there can be no federal procedural due process claim.”) (citing
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)).
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 prisoner’s loss of liberty implicates 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 a deprivation “will inevitably affect the duration of his
sentence” or imposes an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 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).
Confinement in segregation “is the sort of confinement that inmates should
reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460,
467-73 (1983). Thus, it is considered atypical and significant only in “extreme circumstances.”
Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will consider the nature
and duration of a stay in segregation to determine whether it imposes an “atypical and significant
hardship.” Harden–Bey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008).
In Sandin, the Supreme Court concluded that the segregation at issue in that case
(disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin,
515 U.S. at 484. Similarly, the Sixth Circuit has held that mere placement in administrative
segregation, and placement for a relatively short period of time, do not require the protections of due
process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir.
2010) (61 days in segregation is not atypical and significant). The Sixth Circuit has also held, in
specific circumstances, that confinement in segregation for a relatively long period of time does not
implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (two years of segregation while the
inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111 F.3d 460
(6th Cir. 1997) (one year of segregation following convictions for possession of illegal contraband
and assault, including a 117-day delay in reclassification due to prison crowding). But cf. Selby v.
Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty interest);
Harden-Bey, 524 F.3d at 795 (remanding to the district court to consider whether the plaintiff's
allegedly “indefinite” period of segregation, i.e., three years without an explanation from prison
officials, implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012)
(eight years of segregation implicates a liberty interest). Plaintiff’s four-day stay in temporary
segregation did not impose an atypical and significant hardship. Thus it did not require the
protections of due process. Plaintiff has failed to state a claim for violation of his due process rights
arising from his placement in temporary segregation.
Alternatively, Plaintiff’s complaint might be construed to challenge the process he
received in the prison grievance system. That construction does not change the result. Plaintiff has
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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 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. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb.
7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994) (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, the actions of
Defendants Schooley, Miller, Palmer, and Russell in handling Plaintiff’s grievance, did not deprive
him of due process.
Failure to act
The Sixth Circuit held that where the defendant’s only involvement in the allegedly
unconstitutional conduct is “the denial of administrative grievances or the failure to act,” the
defendant cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). The
reason is that there must be active unconstitutional behavior. Failing to intervene on a prisoner’s
behalf to remedy alleged unconstitutional behavior does not amount to active unconstitutional
behavior by a person who merely denies an administrative grievance. Id. Plaintiff does not
complain that any of the Defendants, other than Defendant Whitinger, placed him in segregation.
The core of Plaintiff’s complaint is that Defendant Whitinger placed Plaintiff in temporary
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segregation unfairly and Defendants Schooley, Miller, Palmer, Sissell, and Russell failed to remedy
that. That is not active unconstitutional behavior that might give rise to a claim under § 1983.
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: October 26, 2016
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