Mann #673362 v. Stump et al

Filing 4

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
SOUTHERN DIVISION

COLBY MICHAEL MANN,
Plaintiff,

Case No. 1:17-cv-310

v.

Honorable Janet T. Neff

GARY STUMP 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, Plaintiff’s action will be dismissed on grounds of
immunity and for failure to state a claim.

Factual Allegations
Plaintiff Colby Michael Mann is presently incarcerated with the MDOC at the
Saginaw Correctional Facility in Freeland, Michigan. The events of which he complains, however,
occurred during the last half of 2016, while he was incarcerated at the Bellamy Creek Correctional
Facility (IBC) in Ionia, Michigan.
On July 4, 2016, IBC prisoner Moore #960938 was assaulted. Plaintiff was written
a misconduct ticket for assaulting prisoner Moore. Plaintiff was sent to segregation. Plaintiff met
with a hearing investigator with regard to the ticket. On July 6, 2017, Defendant IBC Sergeant Gary
Stump wrote a misconduct ticket against Plaintiff for possession of a weapon in connection with the
same incident. Plaintiff describes the content of the ticket as follows: “[Plaintiff] stabbed Moore
four times and then fled disposing of the weapon.” (Compl., ECF No. 1, PageID.3.) Because of the
new “charge,” Plaintiff requested a hearing investigator.
Two days later, Plaintiff was brought before Defendant Hearing Officer S. Burke.
Plaintiff expected that this would be a hearing with respect to the assault ticket only, but he soon
learned the hearing related to both tickets. Plaintiff objected because he had not seen an investigator
on the possession of a weapon ticket. Defendant Burke proceeded with the hearing anyway and
found Plaintiff guilty with respect to both tickets. Plaintiff was classified to segregation.
On August 2, 2016, a state trooper interviewed Plaintiff with regard to the assault.
Plaintiff asked the officer if a weapon was found. The officer informed Plaintiff that no weapon had
been found. On November 14, 2016, Plaintiff was arraigned on two charges in connection with the
Moore assault: assault with intent to do great bodily harm and possession of a weapon.

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Plaintiff reviewed the video of the incident as part of the criminal proceedings.
Plaintiff states: “There is no way Stump could honestly ‘positively identify’ me as the attacker
[based on the video].” (Id., PageID.4.) The criminal case was dismissed on November 28, 2016,
because Moore would not testify at the preliminary examination and Defendant Stump did not show
up.
Plaintiff contends that Defendant Burke violated his due process rights by proceeding
with the misconduct hearing and finding Plaintiff guilty when Plaintiff had not been afforded a
hearing investigator with respect to the weapon possession ticket. Plaintiff contends that Defendant
Stump either falsified documents or withheld evidence, specifically the weapon, because it was
never produced. Plaintiff claims he has been relegated to segregation in violation of Plaintiff’s
Eighth Amendment rights because of Defendants’ misconduct. Plaintiff seeks damages in the
amount of $30.00 per day for each day he has spent in segregation, punitive damages of $25,000.00,
mental anguish damages of $10,000, removal of the misconducts from his file, and removal of the
Security Threat Group designation.
Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994). Plaintiff alleges that Defendant Burke has violated his Fourteenth Amendment procedural
due process rights; Defendant Stump has violated Plaintiff’s Fourteenth Amendment substantive due
process rights; and both Defendants have violated Plaintiff’s Eighth Amendment rights because his
stay in segregation is cruel and unusual punishment.

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II.

Immunity

Defendant Burke is a hearing officer whose duties are set forth at MICH. COMP. LAWS
§ 791.251 through § 791.255. Hearing officers are required to be attorneys and are under the
direction and supervision of a special hearing division in the Michigan Department of Corrections.
See MICH. COMP. LAWS § 791.251(e)(6). Their adjudicatory functions are set out in the statute, and
their decisions must be in writing and must include findings of facts and, where appropriate, the
sanction imposed. See MICH. COMP. LAWS § 791.252(k). There are provisions for rehearings, see
MICH. COMP. LAWS § 791.254, as well as for judicial review in the Michigan courts. See MICH.
COMP. LAWS § 791.255(2). Accordingly, the Sixth Circuit has held that Michigan hearing officers
are professionals in the nature of administrative law judges. See Shelly v. Johnson, 849 F.2d 228,
230 (6th Cir. 1988). As such, they are entitled to absolute judicial immunity from inmates’ § 1983
suits for actions taken in their capacities as hearing officers. Id.; and see Barber v. Overton, 496
F.3d 449, 452 (6th Cir. 2007); Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007); cf. Pierson v. Ray,
386 U.S. 547, 554-55 (1967) (judicial immunity applies to actions under § 1983 to recover for
alleged deprivation of civil rights). There is no question that Plaintiff’s claims against Defendant
Burke are based on actions Burke has taken in his capacity as a hearing officer. Therefore,
Defendant Burke enjoys absolute judicial immunity.
III.

Procedural due process

Even if Defendant Burke were not immune, Plaintiff’s procedural due process claim
against Burke, as well as any such claim against Defendant Stump, is properly dismissed because
Plaintiff has failed to identify an interest requiring protection under the Due Process Clause. “The
Fourteenth Amendment protects an individual from deprivation of life, liberty or property, without

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due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005). To establish a
Fourteenth Amendment procedural due process violation, a plaintiff must show that one of these
interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a procedural due
process claim involves two steps: “[T]he first asks whether there exists a liberty or property interest
which has been interfered with by the State; the second examines whether the procedures attendant
upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S.
454, 460 (1989).
The Supreme Court long has held that the Due Process Clause does not protect every
change in the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427
U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the
standard for determining when a state-created right creates a federally cognizable liberty interest
protected by the Due Process Clause. According to the Sandin Court, a prisoner is entitled to the
protections of due process only when the sanction “will inevitably affect the duration of his
sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin, 515 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 administrative 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

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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 placement in segregation has
been a relatively short one and, thus, does not require the protection of due process. Accordingly,
Plaintiff has failed to state a claim for violation of his procedural due process rights.

IV.

Cruel and unusual punishment

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Plaintiff also claims that his stay in segregation violated his right to be free of cruel
and unusual punishment under the Eighth Amendment. The mere fact that Plaintiff was placed in
segregation, with nothing more, is insufficient to state an Eighth Amendment claim. See Lacey v.
Michigan Dep’t of Corr., No. 95-1097, 1995 WL 564301 (6th Cir. Sept. 21, 1995) (placement in
detention did not violate Eighth Amendment); Eaddy v. Foltz, No. 85-1419, 1985 WL 14065 (6th
Cir. Dec. 18, 1985) (whether an Eighth Amendment claim is stated for placement in segregation
depends upon severity or pervasiveness of conditions). Plaintiff has not alleged that his detention
was more severe than the typical conditions of segregation.
The Eighth Amendment prohibits any punishment which violates the civilized
standards of humanity and decency, or involves the unnecessary and wanton infliction of pain. See
Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). To prove an Eighth Amendment violation, an inmate
must show that he has been deprived of the minimum civilized measures of life’s necessities. See
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Because placement in segregation is a routine
discomfort that is a part of the penalty that criminal offenders pay for their offenses against society,
it is insufficient to support an Eighth Amendment claim. See Hudson v. McMillian, 503 U.S. 1, 9
(1992).
V.

Substantive due process

Plaintiff’s allegation that Defendant Stump falsified reports or withheld evidence
implicates the protection afforded by substantive due process. “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, 289 F.3d 417, 431 (6th Cir.
2002). “Substantive due process serves the goal of preventing governmental power from being used

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for purposes of oppression, regardless of the fairness of the procedures used.” Pittman v. Cuyahoga
Cty. 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)). “Conduct shocks the conscience if it ‘violates the
“decencies of civilized conduct.”’” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014) (quoting
Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998) (quoting Rochin v. California, 342 U.S.
165, 172-73 (1952))). The Sixth Circuit has held that 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 Davis
v. Gallagher, No. 1:16-cv-1405, 2016 WL 7403941, *4 (W.D. Mich. Dec. 22, 2016); Robinson v.
Schertz, No. 2:07-cv-78, 2007 WL 4454293 (W.D. Mich. Dec. 14, 2007).
Plaintiff’s allegations against Stump for filing a false misconduct charge does not
shock the conscience nor does it amount to an egregious abuse of governmental power. Plaintiff
does not deny that Moore was assaulted. He only argues that Defendant Stump could not have seen
sufficient evidence in the video of the incident to conclude that Plaintiff was at fault. Essentially,
Plaintiff here alleges only that Defendant Stump issued the misconduct ticket against the wrong
person. Notwithstanding Plaintiff’s overblown language, the fact that an officer may have charged
the wrong prisoner is not shocking or egregious conduct. At best, Plaintiff describes a video
identification that was simply wrong or negligent–neither of which rises to the level of a substantive
due process violation. Plaintiff offers no factual allegations that might elevate the purported
misidentification to shocking or egregious abuse. Accordingly, he has failed to state a claim against
Defendant Stump for violation of substantive due process.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed on grounds of immunity and 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.

Dated: April 27, 2017

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

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