Mackley #586698 v. Napel
Filing
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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
JAMES MACKLEY,
Plaintiff,
Case No. 2:14-cv-46
v.
Honorable R. Allan Edgar
ROBERT NAPEL 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. 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
a claim.
Factual Allegations
Plaintiff is incarcerated in the Marquette Branch Prison. In his pro se complaint, he
sues Warden Robert Napel, Deputy Warden Jim Alexander, Lieutenant Ed Sanderson and
Corrections Officer David Fhlug.
On November 22, 2013, Defendant Fhlug issued a Class II misconduct against
Plaintiff for destruction or misuse of property for allegedly writing in three volumes of the Federal
Reporter that Plaintiff borrowed from the prison law library. (See Misconduct Report, Ex. A, docket
#1-3, Page ID#9.) The misconduct report requested restitution of $224.00 for each book for a total
of $672.00. (Id.) Petitioner denied writing in the books. Following an administrative hearing on
December 5, 2013, Defendant Sanderson found Plaintiff guilty of the offense. Sanderson provided
the following reasons for his findings:
After comparing handwriting found on Mackley’s visitor application and law book
request there does [sic] appear to be similarities in certain letters and numbers. The
paper work documents that the law books were given to Mackley in good condition
and returned to the law library with pen writing in the books. Due to the evidence
presented I find the probability that Mackley is responsible for the alterations to the
books and for that reason is guilty of the charge Destruction or Misuse of Property.
(Misconduct Hrg. Report, Ex. B, docket #1-4, Page ID#10.) As a result of the conviction, Plaintiff
received 30 days loss of privileges and was assessed restitution of $672.00. Plaintiff claims that
Sanderson refused to review several written documents offered by Plaintiff as evidence that the
handwriting in the law books did not match his own. Plaintiff further alleges that Sanderson refused
to allow Plaintiff to provide a visual demonstration of his handwriting at the hearing. Plaintiff raised
those issues on appeal, but his appeal was denied by Defendant Alexander. (See Misconduct Appeal,
Exhibit C, docket #1-5, Page ID#11.)
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Plaintiff contends that he was denied a fair misconduct hearing and appeal. He
alleges that if Defendant Sanderson or Alexander had reviewed the evidence that he wishes to
submit, they would have clearly seen that the handwriting did not match. Plaintiff seeks injunctive
relief and monetary damages of $672.00. He also seeks all fees and costs associated with this action.
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,
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
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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).
As an initial matter, Plaintiff fails to make specific factual allegations against
Defendant Napel. Rather, Plaintiff appears to sue him only by virtue of his position as Warden of
the facility. Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior or vicarious liability. 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).
A claimed constitutional violation must be based upon active
unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber,
310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can
supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310
F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may
not be imposed simply because a supervisor denied an administrative grievance or failed to act based
upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to
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allege that Defendant Napel engaged in any active unconstitutional behavior. Accordingly, he fails
to state a claim against him.
Plaintiff’s claim that he was denied a fair misconduct hearing and appeal implicates
the Due Process Clause. A prisoner’s ability to challenge a prison misconduct proceeding on due
process grounds depends on whether the resulting conviction or punishment implicated a protected
liberty or property interest. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court
recognized that prisoners have a liberty interest in good-time credits, which affect a prisoner’s
release date, and prescribed certain minimal procedural safeguards that prison officials must follow
before depriving a prisoner of these 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
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. Wolff, 418 U.S. at 557. 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. The policy further provides
that prisoners are deprived of good time or disciplinary credits only when they are found guilty of
a Class I misconduct. (See Policy Directive 03.03.105, ¶ AAAA). Because Plaintiff was convicted
of a Class II misconduct, he was not subject to forfeiture of good-time credits.
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to a prison misconduct conviction that results in a
“restraint [of liberty] which . . . imposes atypical and significant hardship . . . in relation to the
ordinary incidents of prison life.” See Sandin v. Connor, 515 U.S. 472, 486-87 (1995). Plaintiff has
not identified any significant deprivation of liberty arising from his misconduct conviction. The
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documents attached to the complaint indicate that, in addition to being ordered to pay restitution,
Plaintiff lost privileges for 30 days. The loss of privileges for 30 days is not an atypical and
significant hardship. See Sandin, 515 U.S. at 486 (30 days in disciplinary segregation with limited
privileges is not atypical and significant); Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004)
(fourteen-day loss of privileges did not impose an atypical, significant deprivation); Dixon v.
Morrison, No. 1:13–cv–1078, 2013 WL 6512981, at *7 (W.D. Mich. Dec.12, 2013) (fifteen-day loss
of privileges did not impose an atypical, significant deprivation implicating due process); see also
Wolff, 418 U.S. at 571 n. 19 (“We do not suggest, however, that the procedures required by today’s
decision for the deprivation of good time would also be required for the imposition of lesser
penalties such as the loss of privileges.”). Thus, the misconduct conviction did not implicate a
protected liberty interest.
To the extent that Plaintiff’s conviction and punishment implicated his property
interests because he was ordered to pay restitution, he fails to state a due process claim. Prison
disciplinary proceedings must meet minimal due process requirements by (i) giving inmates advance
written notice of charges at least 24 hours prior to the disciplinary hearing; (ii) allowing the inmate
to call witnesses and present documentary evidence in the inmate’s defense; and (iii) providing the
inmate with a written statement of evidence relied on by the disciplinary board and the reasons for
the disciplinary action. Wolff, 418 U.S. at 563-69. If the prisoner received the procedural protections
set forth in Wolff, and if there was “some evidence” to support the decision of the hearings officer,
then the prisoner received all the process to which he was due. Walpole v. Hill, 472 U.S. 445, 457
(1985).
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Plaintiff contends that the misconduct proceedings were unfair because the hearing
officer failed to review the written documents offered by Plaintiff as evidence and refused his request
to provide a visual demonstration of his writing. However, the right to call witnesses or present
evidence is not absolute. Wolff, 418 U.S. at 566. The Supreme Court explained:
[W]e must balance the inmate’s interest[s] against the needs of the prison, and some
amount of flexibility and accommodation is required. Prison officials must have the
necessary discretion to keep the hearing within reasonable limits and to refuse to call
witnesses that may create a risk of reprisal or undermine authority, as well as to limit
access to other inmates to collect statements or to compile other documentary
evidence. Although we do not prescribe it, it would be useful for the Committee to
state its reasons for refusing to call a witness, whether it be for irrelevance, lack of
necessity, or the hazards presented in individual cases.
Id. The hearing officer reviewed two separate documents written by Plaintiff before concluding that
there were sufficient similarities to the writing in the reporters to support a finding of guilt. The
written documents Plaintiff offered as evidence or a writing demonstration by Plaintiff would have
been cumulative. Moreover, any writings created by Plaintiff after he was notified of the misconduct
charge would have been subject to manipulation. Due process also does not require prison officials
to find and retain an expert in handwriting analysis. See Spence v. Farrier, 807 F.2d 753, 755–56
(8th Cir. 1986); Garrett v. Smith, 180 F. App’x 379, 381 (3d Cir. 2006).
In addition to the handwriting comparison, the hearing officer’s decision was
supported by library records, which showed that the reporters were in good condition when they were
loaned to Plaintiff, but came back with writing in them. Because Plaintiff received the procedural
protections set forth in Wolff and there was some evidence to support the hearing officer’s decision,
Plaintiff received all of the process that he was due. While the Due Process Clause guarantees
minimum process before depriving an individual of life, liberty, or property; it does not guarantee
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that the procedure will produce the correct decision. See Martinez v. California, 444 U.S. 277, 284,
n.9 (1980) (“It must be remembered that even if a state decision . . . is erroneous, it does not
necessarily follow that the decision violated that individual’s right to due process.”). Accordingly,
Plaintiff fails to state a due process claim against Defendants Fhlug, Sanderson and Alexander.
Conclusion
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.
Dated: 9/19/2014
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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