Richardson #373809 v. Thomas
OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:19-cv-711
Honorable Janet T. Neff
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Michigan Reformatory (RMI) in Ionia, Michigan, where he is serving two life
sentences for two convictions of first-degree murder. Plaintiff sues J. Thomas, a Resident Unit
Manager (RUM) at RMI.
Plaintiff alleges that he was housed at the Kinross Correctional Facility (KCF)
when a “major disturbance” among prisoners took place in the KCF prison yard on September 10,
2016. (Compl., ECF No. 1, PageID.2.) He transferred to RMI three days later and received a
class I misconduct ticket for rioting or striking, based on his alleged involvement in the
disturbance. Prison officials placed him in temporary segregation until his misconduct hearing.
Officer Marutiak held a hearing on the misconduct ticket on September 14 and
found Plaintiff not guilty because there was no credible evidence to support the assertion that
Plaintiff participated in the disturbance at KCF. However, Marutiak charged Plaintiff with a class
II misconduct for being out of place. Plaintiff contends that he did not receive adequate notice of
this charge prior to the hearing.
Plaintiff transferred to the Oaks Correctional Facility (ECF) on October 5, 2016,
where he was again placed in segregation. On October 11, Plaintiff received a notice of intent to
conduct an administrative hearing (NOI),1 written by Defendant Thomas. Plaintiff contends that
Thomas deliberately misrepresented facts in the NOI.
On October 13, Hearing Officer Burke allegedly dismissed the NOI because the
evidence did not support it. That same day, Defendant Thomas allegedly prepared a second NOI
falsely claiming that Plaintiff was involved in the disturbance at KCF because he was not on his
bunk at the time. Plaintiff contends that he was deprived of due process because the NOI was not
reviewed within 24 hours, in accordance with the prison policy. In any event, Hearing Officer
Burke found Plaintiff guilty of the charge in the second NOI.
The attachments to Plaintiff’s complaint refer to the NOI as a “Notice of Intent to Classify to Segregation.” (See
Request for Rehearing Response, ECF No. 1, PageID.16.)
Plaintiff successfully appealed the guilty finding. On January 25, 2017, a Hearings
Administrator allegedly dismissed the second NOI because it was false.
Plaintiff claims that Defendant Thomas intentionally falsified the NOIs to retaliate
against Plaintiff and to have him placed in segregation because Thomas believed that Plaintiff was
involved in the disturbance at KCF. Plaintiff argues that Thomas’ actions violated Plaintiff’s rights
under the First, Fifth, Eighth, and Fourteenth Amendments.
As relief, Plaintiff seeks an injunction and damages.
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.
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
Plaintiff’s allegations encompass actions by multiple prison officials, but RUM
Thomas is the only individual named as a defendant to the complaint, and he is liable under § 1983
solely for his own conduct; he is not liable for the conduct of other officials. Iqbal, 556 U.S. at
676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556
F.3d 484, 495 (6th Cir. 2009). Thus, the Court will examine the allegations of the complaint to
determine whether Plaintiff states a claim against Defendant Thomas. The Court will not consider
whether Plaintiff states a claim against other individuals mentioned in the body of the complaint.
Plaintiff claims that Thomas retaliated against him by writing false NOIs.
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.
Plaintiff’s claim fails because he does not allege that Thomas’ actions were
motivated by any protected conduct. Instead, he alleges that Thomas’ actions were motivated by
Thomas’ belief that Plaintiff was involved in the prison disturbance at KCF. In the prison context,
however, prisoner riots and strikes violate prison rules and, thus, are not protected conduct. See
Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (insolent behavior that violates prison
regulations is not protected conduct). Accordingly, Plaintiff has not alleged a necessary element
of a retaliation claim.
Plaintiff also claims that he was deprived of due process because he did not receive
adequate notice of charges against him. The Fourteenth Amendment protects an individual from
deprivation of life, liberty or property, without 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
The only interest at stake with regard to the allegedly false NOIs was the change in
Plaintiff’s conditions of confinement due to placement in segregation. However, 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).
A prisoner is entitled to the protections of due process only when a 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 v. Conner, 515 U.S. 472,
Placement in administrative segregation is not an atypical and significant hardship.
It “is the sort of confinement that inmates should reasonably anticipate receiving at some point in
their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468 (1983). Thus, it is considered atypical
and significant only in “extreme circumstances.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th
Cir. 2010). In Sandin, the Supreme Court concluded that the plaintiff’s placement in disciplinary
segregation for 30 days did not implicate a liberty interest because it “mirrored those conditions
imposed upon inmates in administrative segregation and protective custody” and did not “present
a dramatic departure” from his sentence. Sandin, 515 U.S. at 485-86. Similarly, in Rimmer-Bey
v. Brown, 62 F.3d 789 (6th Cir. 1995), the Sixth Circuit concluded that the plaintiff’s placement
in administrative segregation in a Michigan prison was not an atypical and significant hardship in
the context of his life sentence. Id. at 791.
Plaintiff alleges no facts about the segregative confinement resulting from the NOIs
prepared by Thomas which would suggest that his confinement imposed, or threatened to impose,
an atypical and significant hardship. Plaintiff was apparently confined in segregation from the
beginning of October 2016 until the end of January 2017, a period of approximately four months.
However, the Court of Appeals for the Sixth Circuit has held that confinement in segregation for
much longer periods of time does not give rise to a protected liberty interest. See, e.g., Jones v.
Baker, 155 F.3d 810, 812-23 (6th Cir. 1998) (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). Plaintiff has not
alleged the sort of “extreme circumstances” that would render his confinement significant and
atypical. 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).
In short, Thomas’ actions did not implicate any of Plaintiff’s protected property or
liberty interests. Consequently, Plaintiff does not state a due process claim.
Plaintiff also does not state an Eighth Amendment claim. 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).
“Not 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.
Defendant Thomas allegedly subjected Plaintiff to a risk of further confinement in
segregation. However, segregation in itself does not constitute cruel and unusual punishment. To
the contrary, 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). Plaintiff may have been denied certain
privileges as a result of his confinement in segregation, but he does not allege that he was denied
basic human needs and requirements. Accordingly, he has not alleged an Eighth Amendment
violation. See Evans v. Vinson, 427 F. App’x 437, 443 (6th Cir. 2011) (no Eighth Amendment
claim where “[Plaintiff] has not asserted that he was denied any basic human needs while in
administrative segregation”); see also Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008)
(“‘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.”’) (quoting Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003)).
Plaintiff also claims that he was denied equal protection. The Equal Protection
Clause prohibits discrimination by government actors which either burdens a fundamental right,
targets a suspect class, or intentionally treats one differently than others similarly situated without
any rational basis for the difference. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681-82
(6th Cir. 2011); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005).
The threshold element of an equal protection claim is disparate treatment.
Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006); Ctr. for Bio-Ethical
Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (“To state an equal protection claim,
a plaintiff must adequately plead that the government treated the plaintiff ‘disparately as compared
to similarly situated persons and that such disparate treatment either burdens a fundamental right,
targets a suspect class, or has no rational basis.’”). Plaintiff alleges no disparate treatment here.
His conclusory allegations of unconstitutional conduct without specific factual allegations fail to
state a claim under § 1983.
Fifth Amendment – Double Jeopardy
Plaintiff argues that Thomas subjected him to double jeopardy by claiming that he
was involved in the prison disturbance after Plaintiff had already been found not guilty of a
misconduct for riot or striking. The Double Jeopardy Clause guarantees that no person shall be
“subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V.
In order to state a double jeopardy violation, Plaintiff must allege “multiple criminal punishments”
for the same offense. Hudson v. United States, 522 U.S. 93, 99 (1997).
Here, Plaintiff does not allege multiple punishments for the same offense, let alone
multiple criminal punishments. Indeed, the Double Jeopardy Clause does not apply here because
administrative prison disciplinary sanctions are civil in nature; they are not criminal. “The Double
Jeopardy Clause was not intended to inhibit prison discipline.” United States v. Simpson, 546 F.3d
394, 398 (6th Cir. 2008); see also Odom v. Smith, No. 1:08-cv-1181, 2009 WL 125286, at *6
(W.D. Mich. Jan. 16, 2009) (finding prisoner failed to state double jeopardy claim based on prison
officials’ decision to confiscate his property because the taking of prisoner property is
administrative in nature and the Double Jeopardy Clause does not apply to administrative
Having conducted the review required by the Prison Litigation Reform Act, the
Plaintiff’s complaint will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2),
1915A; 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.
October 10, 2019
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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