Fields #261409 v. Gerth et al

Filing 9

OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

CHARLES EDWARD FIELDS,
Plaintiff,

Case No. 2:13-cv-306

v.

Honorable R. Allan Edgar

DENISE GERTH 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.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff will pay the initial
partial filing fee when funds are available. 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 immunity grounds and/or
for failure to state a claim.

Factual Allegations
Plaintiff presently is incarcerated at the Baraga Maximum Correctional Facility. In
his pro se complaint, Plaintiff sues Assistant Resident Unit Supervisor (ARUS) Denise Gerth and
Hearing Officer Linda Maki for violating his First and Fourteenth Amendment rights.
On October 25, 2012, Plaintiff was ordered to pack his things up in a duffle bag and
return to the general population. Plaintiff refused. The prison guard then issued a misconduct ticket
to Plaintiff. According to his October 25, 2012 Misconduct Report, Plaintiff was charged with
Destruction or Misuse of Property, a Class II Misconduct. (Attach. to Compl., docket #8-1, Page
ID#28.) Plaintiff complains that ARUS Gerth later re-classified his misconduct ticket to a Class I
Misconduct for Disobeying a Direct Order.1 (Compl., docket #1, Page ID#3.) Before his misconduct
hearing on November 9, 2012, Plaintiff encountered ARUS Gerth speaking with Hearing Officer
Maki. Gerth asked Plaintiff if Plaintiff was ready to be found guilty on his misconduct violation.
Before Plaintiff could respond, Maki said “[t]hat is ensured.” (Id.) Plaintiff was ultimately found
guilty of the misconduct charge. (Id. at Page ID##3-4.)
As to his misconduct ticket, Plaintiff claims that he did not receive a timely hearing
under Michigan Department of Corrections (MDOC) Policy Directive 03.03.105(AA)(1), which
requires hearings to be held within seven days.2 Plaintiff also argues that he did not receive twentyfour hours’ notice that his misconduct charge was changed from Destruction or Misuse of Property

1

Under Michigan Department of Corrections Policy Directive 03.03.105, ¶ B, a Class I misconduct is a “major”
misconduct and Class II and III misconducts are “minor” misconducts. (See Policy Directive 03.03.105, ¶ B) (effective
Apr. 9, 2012).
2
According to Michigan Department of Corrections Policy Directive 03.03.105, ¶AA(1) (effective Apr. 9,
2012), a hearing shall be conducted within seven business days after the Misconduct Report is reviewed with the
prisoner. Plaintiff’s misconduct was reviewed on October 25, 2012, and the hearing was held on November 9, 2012,
a difference of fifteen days. (Attach. to Compl., docket #8-1, Page ID#28.)

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to Disobeying a Direct Order.3 (Id. at Page ID#4.) Plaintiff further states that he did not have the
opportunity to provide a defense. Because of the misconduct conviction, Plaintiff lost thirty days
of disciplinary credits and was classified to administrative segregation for three months. Plaintiff
argues that Defendants Gerth and Maki violated his due process rights.
Plaintiff also asserts retaliation and conspiracy claims. Plaintiff argues that ARUS
Gerth retaliated against him by changing the classification of his misconduct ticket because Plaintiff
filed a grievance against Gerth’s co-workers. Plaintiff also states that Hearing Officer Maki
retaliated against Plaintiff because Plaintiff asked Maki to disqualify herself from his misconduct
hearing. Finally, Plaintiff complains that Defendants Gerth and Maki conspired to find him guilty
of the misconduct ticket.
For relief, Plaintiff requests $90,000 in compensatory damages, $30,000 in emotional
damages, $8,000 in economic damages and $250,000 in punitive damages.
Discussion
I.

Immunity

Defendant Maki 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

3

In his November 9, 2012 Misconduct Hearing Report, the hearing officer noted that the ARUS changed the
charge on the Misconduct Report from Destruction or Misuse of Property to Disobeying a Direct Order. The officer
stated: “It is obvious that the title of the charge was wrong as the description had nothing to do with [the] destruction or
misuse of property. It had to do with disobeying an order to pack up. The error was in the nature of the clerical error
and correction by the ARUS, the reviewing officer, was appropriate.” (Attach. to Compl., docket #8-1, Page ID#29.)

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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.; see also 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). Plaintiff’s action against Hearing Officer Maki fails because
Maki is absolutely immune under the circumstances of this case.
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
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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).
A.

Due Process

Plaintiff complains that he did not receive a timely misconduct hearing, notice of the
classification change in his misconduct charge or the opportunity to present a defense in violation
of his due process rights. Plaintiff was ultimately convicted of his misconduct charge. 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
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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 abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct conviction 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 credits4 for prisoners convicted for 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. 481 F.3d 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. 355 F.
App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196, at *4 (E.D. Mich. Nov.
24, 2010) (Report & Recommendation) (holding that “plaintiff’s disciplinary hearing and major

4
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).

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misconduct sanction does not implicate the Fourteenth Amendment Due Process Clause”), adopted
as judgment of court, No. 09-13030, 2011 WL 17591, at *1 (E.D. Mich. Jan. 4, 2011). In the
absence of a demonstrated liberty interest, Plaintiff has no due-process claim based on the loss of
disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, Plaintiff
may nevertheless 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 conviction, and, thus,
his due process claim fails.
For all of these reasons, Plaintiff’s due process claims regarding his misconduct
conviction fail to state a claim.
B.

Retaliation

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. 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

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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)).
Plaintiff alleges that Defendant Gerth retaliated against him by changing the
classification of his misconduct charge because Plaintiff filed grievances against Gerth’s co-workers.
The filing of a prison grievance is constitutionally protected conduct for which a prisoner cannot be
subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Hall v.
Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v. Rowley, No. 001144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). While Plaintiff satisfies the first element,
he fails to satisfy the second and third elements. The adverseness inquiry is an objective one, and
does not depend on how a particular plaintiff reacted. The relevant question is whether the
defendants’ conduct is “capable of deterring a person of ordinary firmness;” the plaintiff need not
show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002). At Plaintiff’s
misconduct hearing, Hearing Officer Maki stated that the initial classification of Plaintiff’s
misconduct as Destruction or Misuse of Property was merely a clerical error and Gerth correctly
changed the misconduct charge to Disobeying a Direct Order. Where a disputed issue of fact is
resolved at a major misconduct hearing as a necessary part of the hearing’s judgment, that factfinding
has preclusive effect in collateral litigation brought by the prisoner under 42 U.S.C. §1983. See
Peterson v. Johnson, 714 F.3d 914-15 (6th Cir. 2013). Under Peterson, Plaintiff may not contest
the finding of Hearing Officer Maki. Because the classification change was merely to correct a
clerical error, it can hardly be construed as an adverse action. Moreover, Plaintiff fails to establish
a causal connection between the adverse action and protected conduct. Again, Defendant Gerth was
motivated to change the misconduct classification in order to correct a clerical error. Gerth would
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have changed the classification on the misconduct ticket regardless of Plaintiff’s prior grievances.
Therefore, Plaintiff fails to satisfy the second and third elements of his retaliation claim, and, thus,
his retaliation claim fails.
Further, a finding of guilt for a misconduct ticket based on some evidence of a
violation of prison rules essentially “checkmates” a retaliation claim. Lewis v. Turner, 16 F. App’x
302 (6th Cir. 2001); see also Bey v. Frechen, No. 2:15-cv-201, 2006 WL 2632564, at *2 (W.D.
Mich. 2006); Coleman v. Gerth, No. 2:05-cv-158, 2006 WL 2714959, at *4 (W.D. Mich. 2006). The
Sixth Circuit’s application of this rule has been unwavering. See Burton v. Rowley, 2000 WL
1679463, at *2 (6th Cir. 2000) (A finding of guilt based on some evidence of a violation of prison
rules “essentially checkmates [a] retaliation claim.”). Because Hearing Officer Maki found Plaintiff
guilty of disobeying a direct order, Plaintiff’s retaliation claim was “checkmated.” See id.
For all these reasons, Plaintiff’s retaliation claim against Defendant Gerth fails to state
a claim.
C.

Conspiracy

Plaintiff alleges that Defendants Gerth and Maki conspired together to find Plaintiff
guilty of his misconduct ticket. To state a claim for conspiracy, a plaintiff must plead with
particularity, as vague and conclusory allegations unsupported by material facts are insufficient.
Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by
allegations of fact that support a “plausible suggestion of conspiracy,” not merely a “possible” one);
Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.
2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106
(6th Cir. 1985); Pukyrys v. Olson, No. 95-1778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996).
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A civil conspiracy under § 1983 is “an agreement between two or more persons to injure another by
unlawful action.’” See Hensley v. Gassman, 693 F.3d 681 (6th Cir. 2012) (quoting Hooks v. Hooks,
771 F.2d 935, 943-44 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that
the alleged coconspirator shared in the general conspiratorial objective to deprive the plaintiff of a
federal right, and that an overt action committed in furtherance of the conspiracy caused an injury
to the plaintiff. Id.; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011).

“[V]ague

allegations of a wide-ranging conspiracy are wholly conclusory and are, therefore, insufficient to
state a claim.” Hartsfield v. Mayer, No. 95-1411, 1996 WL 43541, at *3 (6th Cir. Feb. 1, 1996).
A simple allegation that defendants conspired to cover up wrongful actions is too conclusory and too
speculative to state a claim of conspiracy. Birrell v. Michigan, No. 94-2456, 1995 WL 355662, at
*2 (6th Cir. June 13, 1995).
In the instant case, Plaintiff merely alleges that Defendants Gerth and Maki spoke
before his misconduct hearing and agreed to find Plaintiff guilty of the misconduct ticket. Plaintiff’s
allegations of conspiracy are conclusory and speculative. Plaintiff has provided no allegations
establishing a link between the alleged conspirators or any agreement between them. He relies
entirely on a highly attenuated inference from the mere fact that certain prison officials have either
disciplined him or made decisions with which he disagrees. As the Supreme Court has held, such
allegations, while hinting at a “possibility” of conspiracy, do not contain “enough factual matter
(taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. Instead, the
Court has recognized that although parallel conduct may be consistent with an unlawful agreement,
it is insufficient to state a claim where that conduct “was not only compatible with, but indeed was
more likely explained by, lawful, unchoreographed . . . behavior.” Iqbal, 556 U.S. at 680. In light
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of the far more likely possibility that Defendants’ conduct was unrelated, Plaintiff fails to state a
plausible claim of conspiracy.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed on immunity grounds and/or 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
$455.00 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 $455.00 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:

12/6/2013

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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