Davis #368425 v. Gallagher et al

Filing 5

OPINION; Order 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
SOUTHERN DIVISION

CHRIS DAVIS,
Plaintiff,

Case No. 1:16-cv-1405

v.

Honorable Janet T. Neff

JAMES GALLAGHER 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.
Plaintiff, who is represented by counsel, paid the full filing fee. 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. § 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 against Defendant
Miller for failure to state a claim. The Court also will dismiss Plaintiff’s Eighth Amendment and
procedural due process claims against Defendant Gallagher. The Court will serve the remainder of
the complaint against Defendant Gallagher.

Discussion
I.

Factual allegations

Plaintiff Chris Davis presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Michigan Reformatory (RMI). He sues RMI Correctional Officer James
Gallagher and RMI Inspector (unknown) Miller.
On March 11, 2015, Defendant Gallagher called out to Plaintiff, saying, “Hey, Bubba,
where are you going?” (Compl., ECF No. 1, PageID.2.) Plaintiff did not realize he was being
addressed, as that was not his name. Gallagher then called to Plaintiff again, this time calling him
“Boy” and stating that he was giving a direct order. (Id.) Plaintiff responded that he was going to
work in the quartermaster’s area and that his name was not “Bubba.” (Id.) Plaintiff advised
Gallagher that he intended to file a grievance about Gallagher’s racial slurs. Gallagher then warned
Plaintiff, stating, “[N]ext time I call you, you better acknowledge me, or I will put your ass in the
hole boy!” (Id., PageID.3.)
Later that day, as Plaintiff was leaving the lunch room, Defendant Gallagher called
out to Plaintiff, “Hey, Bubba, what’s that in your hand?” Plaintiff again complained about the racial
slurs. Defendant Gallagher searched Plaintiff, found nothing, but placed Plaintiff in handcuffs.
After Plaintiff was handcuffed, Defendant Gallagher claimed to have found drugs in Plaintiff’s
pocket.

Gallagher wrote a misconduct ticket and took Plaintiff to segregation.

Petitioner

subsequently was tested for drugs in his system, and the tests came back negative.
On March 20, 2015, Plaintiff reported for a hearing on the misconduct charge, but
he was advised that the hearing was adjourned. Plaintiff was not told the reason for the adjournment
or when the hearing would be reconvened. On April 9, 2015, Defendant Miller met with Plaintiff

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and advised him that he would only be let out of segregation if he told Miller which inmates or staff
members were supplying him with drugs. Miller threatened, “[w]e are going to make you suffer in
ways you can’t imagine. (Id., PageID.4.) Plaintiff advised Miller that he had no drugs on his person
and that the misconduct ticket was false. Shortly thereafter, Miller increased Plaintiff’s security
level from Level II to Level IV.1
Plaintiff never received a hearing on the misconduct ticket and was never found
guilty of a misconduct charge. Instead, the prison turned over the matter to the Ionia County
prosecutor. On September 7, 2016, Plaintiff was found not guilty of the heroin charges.
Plaintiff contends that his placement in segregation and his increase in security
classification violated the Eighth Amendment. In addition, he contends that Defendant Gallagher’s
actions in writing a false misconduct ticket and in planting the heroin violated Plaintiff’s right to
substantive due process. Plaintiff also alleges that, in transferring Plaintiff to a higher security level
without a hearing, Defendant Miller deprived him of his liberty without due process. Plaintiff
further asserts that Defendant Gallaher retaliated against him by either planting heroin on him or
falsely claiming that Plaintiff had heroin, because Plaintiff threatened to file a grievance about the
racial slurs. He argues that Defendant Miller retaliated against him for refusing to provide
information about drug dealing in the prison. Finally, Plaintiff asserts that Defendant Gallagher
maliciously prosecuted him for threatening to file a grievance.
For relief, Plaintiff seeks compensatory and punitive damages.

1
In the MDOC, security classifications, from least to most secure, are as follows: Levels I, II, IV, V, and
administrative segregation. MDOC Policy Directive 05.01.130 ¶ B (Oct. 10, 2011).

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II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 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)
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.

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Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A.

Eighth Amendment

Plaintiff complains that Defendant Gallagher violated the Eighth Amendment by
confining him to segregation and that Defendant Miller violated the Eighth Amendment by
increasing Plaintiff’s security level.
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 Amendment.” Ivey, 832 F.2d at 954.
Placement in segregation is a routine discomfort that is “‘part of the penalty that
criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9
(1992) (quoting Rhodes, 452 U.S. 337, 347 (1981); see also Jones v. Waller, No. 98-5739, 1999 WL

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313893, at *2 (6th Cir. May 4, 1999). Although it is clear that Plaintiff was denied certain privileges
as a result of his administrative segregation, he does not allege or show that he was denied basic
human needs and requirements. The Sixth Circuit has held that without a showing that basic human
needs were not met, the denial of privileges as a result of administrative segregation cannot establish
an Eighth Amendment violation. See Evans v. Vinson, 427 F. App’x 437, 443 (6th Cir. 2011);
Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008). Plaintiff makes no such showing. For the
same reasons, mere placement in Level IV security classification, a classification less restrictive than
administrative segregation, does not amount to an Eighth Amendment violation. Finally, Plaintiff
cannot bring an Eighth Amendment claim for emotional or mental damages because he does not
allege a physical injury. See 42 U. S.C. §1997e(e); see also Hudson, 503 U.S. at 5; Harden-Bey, 524
F.3d at 795. As a result, Plaintiff fails to state an Eighth Amendment claim against Defendants.
B.

Procedural Due Process

Plaintiff contends that Defendant Miller deprived him of his right to procedural due
process when he changed his security classification level from Level II to Level IV. He also
suggests that Defendant Gallagher deprived him of his procedural due process rights in placing him
in segregation without a hearing.
The Supreme Court has held that a prisoner does not have a protected liberty interest
in the procedures affecting his classification and security because the resulting restraint does not
impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In Rimmer-Bey v. Brown, 62 F.3d 789,
790-91(6th Cir. 1995), the Sixth Circuit applied the Sandin test to the claim of a Michigan inmate
that the mandatory language of the MDOC’s regulations created a liberty interest that he receive

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notice and hearing before being placed in administrative segregation. The court held that regardless
of the mandatory language of the prison regulations, the inmate did not have a liberty interest
because his placement in administrative segregation did not constitute an atypical and significant
hardship within the context of his prison life. Id; see also Mackey v. Dyke, 111 F.3d 460, 463 (6th
Cir. 1997). Without a protected liberty interest, plaintiff cannot successfully claim that his due
process rights were violated because, “[p]rocess is not an end in itself.” Olim v. Wakinekona, 461
U.S. 238, 250 (1983).
Moreover, the Supreme Court repeatedly has held that a prisoner has no constitutional
right to be incarcerated in a particular facility or to be held in a specific security classification. See
Olim, 461 U.S. at 245; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, 427 U.S.
215, 228-29 (1976). The Sixth Circuit has followed the Supreme Court’s rulings in a variety of
security classification challenges. See, e.g., Harris v. Truesdell, 79 F. App’x 756, 759 (6th Cir.
2003) (holding that prisoner had no constitutional right to be held in a particular prison or security
classification); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (same); O’Quinn v. Brown,
No. 92-2183, 1993 WL 80292, at *1 (6th Cir. Mar. 22, 1993) (prisoner failed to state a due process
or equal protection claim regarding his label as a “homosexual predator” because he did not have
a constitutional right to a particular security level or place of confinement). Because Plaintiff does
not have a constitutional right to a particular security level or classification, he fails to state a claim.
C.

Substantive Due Process

Plaintiff next asserts that Defendant Gallagher violated his substantive due process
rights by planting evidence and framing him for drug possession. Under the Due Process Clause of
the Fourteenth Amendment, states are prohibited from “depriv[ing] any person of life, liberty, or

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property, without due process of law[.]” U.S. Const. amend. XIV. “Substantive due process
prevents the government from engaging in conduct that shocks the conscience or interferes with
rights implicit in the concept of ordered liberty.” Prater v. City of Burnside, Ky., 289 F.3d 417, 431
(6th Cir. 2002). “Substantive due process serves the goal of preventing governmental power from
being used for purposes of oppression, regardless of the fairness of the procedures used.” Pittman
v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting
Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)). Framing an inmate by planting evidence
may violate substantive due process where a defendant’s conduct shocks the conscience and
constitutes an “egregious abuse of governmental power.” Cale v. Johnson, 861 F.2d 943, 950 (6th
Cir.1988), overruled in other part by Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999); see
also Robinson v. Schertz, No. 2:07-cv-78, 2007 WL 4454293 (W.D. Mich. Dec. 14, 2007). Upon
initial review, the Court concludes that Plaintiff has sufficiently alleged a substantive due process
claim against Defendant Gallagher.
D.

Retaliation

Plaintiff asserts that Defendant Gallagher retaliated against him for threatening to file
a grievance, by falsely accusing Plaintiff of possessing heroin. Plaintiff also suggests that Defendant
Miller retaliated against him by increasing Plaintiff’s security clearance because Plaintiff refused
to provide information about drug dealing within the prison.
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

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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)).
Upon initial review, the Court concludes that Plaintiff has adequately alleged
sufficient facts to state a retaliation claim against Defendant Gallagher.
Plaintiff’s allegations against Defendant Miller, however, fail to state a retaliation
claim. Plaintiff’s refusal to answer Defendant Miller’s questions about drug dealing did not
constitute speech protected by the First Amendment. The First Amendment ordinarily prevents the
state from “inquir[ing] about a man’s views or associations solely for the purpose of withholding
a right or benefit because of what he believes.” Baird v. State Bar of Ariz., 401 U.S. 1, 7 (1971).
It protects both the right to speak freely and the right not to speak at all. Wooley v. Maynard, 430
U.S. 705, 714 (1977). As the Supreme Court repeatedly has recognized, however, the fact of
incarceration necessarily imposes “limitations on constitutional rights, including those derived from
the First Amendment [.]” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977).
A prisoner retains only 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). “[W]hen a prison regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v.
Safley, 482 U.S. 78, 89 (1987).

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Here, Plaintiff utterly fails to allege that Defendant Miller had no legitimate
penological interest in identifying the person or persons who had provided the drugs that Defendant
Gallagher found on Plaintiff. Courts routinely have held that prisoners have no First Amendment
right to refuse to provide information during an investigation. See Ayala v. Harden, No. 1:12-cv00281, 2012 WL 4981269, at *2 (E.D. Cal. Oct. 17, 2012) (holding that a prisoner’s “[r]efusal to
become an informant is not protected First Amendment activity”); Clardy v. Mullens, No. 12-cv11153, 2012 WL 5188012, at *7 (Aug. 29, 2012) (inmate’s refusal to provide information about
another inmate is not protected conduct); Canosa v. State of Hawaii, No. 05–00791, 2007 WL
128849, at *2, 6, 10 (D. Haw. Jan. 11, 2007) (holding that “[t]he act of refusing to provide
information about fellow inmates is not ‘protected conduct’ under the First Amendment.”), report
and recommendation adopted by 2007 WL 473679 (Feb. 8, 2007); Bradley v. Rupert, No.
5:05CV74, 2007 WL 2815733, at *6 (E.D. Tex. Sept. 25, 2007) (refusal to provide information
during an internal investigation is not protected conduct); Dixon v. Gonzales, No. 1:09–00172, 2009
WL 3416005, at *3 (E.D. Cal. Oct. 21, 2009), report and recommendation adopted by 2009 WL
5125612 (Dec.21, 2009). Moreover, although Plaintiff contends that Gallagher planted the drugs
or falsely stated that Plaintiff had those drugs, Plaintiff alleges no facts suggesting that Defendant
Miller knew that Galllagher’s report was false or joined Gallagher in his allegedly retaliatory
motive. Under these circumstances, Plaintiff was not engaged in protected conduct in refusing to
answer Defendant Miller’s questions about the source of his drugs. He therefore fails to demonstrate
that his placement in a higher security classification was retaliatory.

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E.

Malicious Prosecution

Plaintiff next alleges that Defendant Gallagher acted maliciously to plant evidence
and have Plaintiff prosecuted for possession of heroin. He asserts his claim both under § 1983 and
under Michigan law.
In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010), the Sixth Circuit recognized the
existence of a claim of malicious prosecution arising under the Fourth Amendment, which is
cognizable in an action under § 1983. Id. at 308 (citing Wallace v. Kato, 549 U.S. 384, 390 n.2
(2007) (assuming without deciding that such a claim existed)). The Sykes court held that, to succeed
on a malicious prosecution claim, a plaintiff must show the following elements: (1) a prosecution
was initiated against the plaintiff and that the defendant participated in the decision; (2) there was
a lack of probable cause for the criminal prosecution; (3) the plaintiff suffered a deprivation of
liberty as a consequence of the legal proceedings; and (4) the criminal proceeding was resolved in
the plaintiff’s favor. Id. at 308-09; see also Gregory v. City of Louisville, 444 F.3d 725, 747 (6th
Cir. 725, 727 (6th Cir. 2006). A Fourth Amendment claim for malicious prosecution does not
require that a Plaintiff demonstrate that the defendant acted with malice. Id. at 309-10. In fact,
under established Fourth Amendment jurisprudence, a defendant’s intent is irrelevant to the analysis,
which rests on a determination of reasonableness. Id.
Similarly, under Michigan law, the elements which establish the tort of malicious
prosecution include the following: (1) the defendant instituted a prior legal action against the
plaintiff, (2) the prior action was terminated in favor of the present plaintiff, (3) the defendant lacked
probable cause to bring the prior action, and (4) the defendant acted maliciously in bringing the prior

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action. See Pauley v. Hall, 335 N.W.2d 197, 200 (Mich. App. 1983); Wilson v. Yono, 237 N.W.2d
494, 496 (Mich. App. 1975).
Upon initial review, the Court concludes that Plaintiff’s allegations warrant service
of the malicious prosecution claims against Defendant Gallagher.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendant Miller will be dismissed from the action pursuant to 28 U.S.C.
§1915A(b), and 42 U.S.C. § 1997e(c), because Plaintiff’s allegations fail to state a claim against
him. The Court also will dismiss Plaintiff’s Eighth Amendment and procedural due process claims
against Defendant Gallagher. The Court will serve the remainder of the complaint against
Defendant Gallagher.
An Order consistent with this Opinion will be entered.

Dated:

December 22, 2016

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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