Moore #255379 v. Larson et al

Filing 10

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ANTHONY LAMONT MOORE,
Plaintiff,
v.

Case No. 2:15-cv-140
Honorable Gordon J. Quist

UNKNOWN LARSON, 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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Larson, Durant, Russell, and O’Brien. The Court will serve the
complaint against Defendant Davis with regard to the claim that she failed to protect him from
Inmate Thompson in retaliation for his use of the grievance procedure in violation of his First and
Eighth Amendment rights.

Factual Allegations
Plaintiff Anthony Lamont Moore, a Michigan state prisoner currently confined at the
Ojibway Correctional Facility (OCF), filed this pro se civil rights action pursuant to 42 U.S.C. §
1983 against Defendants Corrections Officer Unknown Larson, Hearing Investigator Unknown
Durant, “Mr. in Charge of Legal Affairs and Hearing Department” Unknown Russell, Hearing
Officer Unknown O’Brien, and Corrections Officer Unknown Davis.
Plaintiff alleges that on August 26, 2013, while he was confined at the Chippewa
Correctional Facility (URF), he told Defendant Davis that he was having problems with inmate
Allen Thompson, and that he feared for his safety. Defendant Davis told Plaintiff that it couldn’t
be serious because he did not appear hurt and instructed him to return to his cube. As Plaintiff was
leaving, Defendant Davis said, “Let me know when you’re hurt, and maybe I will do something.”
Plaintiff told Defendant Davis that he planned to write a grievance on her. Defendant Davis then
stated, “That’s all you do anyways, is file f**king grievances on everybody, and I don’t care about
your little problem, deal with it.”
Later that afternoon, Plaintiff was called into the bathroom by inmate Thompson.
Plaintiff assumed that they were going to talk the problem out as gentlemen outside the presence of
others. However, inmate Thompson attacked Plaintiff by slamming his head on the sink, pushing
Plaintiff to the ground, and punching Plaintiff in the face. After the assault, Defendant Davis came
into the bathroom and observed Plaintiff bleeding from his head. Defendant Davis asked what had
happened, but Plaintiff was afraid of being a snitch and said nothing. Defendant Davis ordered
prisoner bystanders to return to their cubes. Defendant Davis then separated Plaintiff and inmate
Thompson. At this point, Plaintiff complained that he had tried to tell Defendant Davis what was
going on, but that she had ignored the situation.
Defendant Davis called for help and told Corrections Officer John Doe to cuff both
Plaintiff and inmate Thompson because she had witnessed them fighting. Plaintiff was taken to
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segregation, where he was seen by a nurse because he was bleeding from his head and was suffering
from a headache. Plaintiff was given a bandage and a couple of aspirin packets. Later that day,
Plaintiff received a misconduct ticket for fighting. In the misconduct, Defendant Davis falsely
stated that she had observed Plaintiff and inmate Thompson throwing closed fist punches at each
other.
On August 27 and 28 of 2013, Plaintiff was seen by a nurse because he continued to
suffer from headaches. On August 29, 2013, Plaintiff was interviewed by Defendant Durant. Before
beginning the interview, Defendant Durant had Plaintiff sign the hearing investigation report and
hand it back to him. Plaintiff thought that this was the procedure followed in segregation. During
the interview, Plaintiff told Defendant Durant that inmate Thompson had assaulted him and that
Defendant Davis had been made aware of the fact that Plaintiff was being threatened by inmate
Davis. Plaintiff also gave Defendant Durant a list of prisoner witnesses and requested video from
the unit camera.
Plaintiff received a hearing before Defendant O’Brien on September 3, 2013. After
Plaintiff gave his statement, which explained the entire situation, Defendant O’Brien found him
guilty based on the statements of Defendant Davis. When Plaintiff asked for the witness statements
and video evidence that he had requested from Defendant Durant, Defendant O’Brien stated that she
had not seen any such evidence. Later that day, Plaintiff requested a step I grievance form so that
he could file a grievance on Defendant Davis. Plaintiff was on modified access to the grievance
procedure, and could not obtain a grievance form without requesting it from Grievance Coordinator
Mclean. Plaintiff’s request was denied.
On September 4, 2013, Plaintiff requested a hearing packet from Defendant Durant
so that he could appeal his misconduct conviction. On September 5, 2013, inmate Thompson told
Plaintiff that when he had been interviewed by Defendant Durant, he admitted assaulting Plaintiff
and stated that Plaintiff had not fought back. Plaintiff states that this information was never revealed
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to him during his hearing. Plaintiff received a hearing packet on September 6, 2013, and noted that
Defendant Durant had not accurately recorded his statement or signed the report. Plaintiff also
asserts that Defendant O’Brien falsely stated that Plaintiff had pleaded guilty to fighting with
another prisoner. Plaintiff completed his appeal and attempted to send it out as expedited legal mail.
However, Plaintiff was told that it was not considered legal mail, so he gave it to Defendant Larson
in an unsealed envelope in accordance with segregation rules. Plaintiff complains that Defendant
Larson had repeatedly told him that he was “dumb” for filing grievances.
On September 16, 2013, Plaintiff was transferred from URF to the Alger Maximum
Correctional Facility (LMF). Plaintiff states that he never heard anything regarding his appeal and
on October 22, 2013, had a family member call the Office of Legal Affairs to check on his appeal.
Plaintiff discovered that his appeal was never received by the Office of Legal Affairs.
Plaintiff claims that Defendants’ conduct violated his rights under the First, Eighth
and Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages, as well as
injunctive relief.
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
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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 claims that Defendant Davis retaliated against him for filing grievances by
failing to protect him and by writing a false misconduct on him. Plaintiff also claims that
Defendants Durant and O’Brien improperly investigated the misconduct and found him guilty.
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. Thaddeus-X, 175 F.3d at 394. Moreover, a plaintiff must be able
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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)).
The filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be retaliated against. 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. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). The Court notes that to the extent
that Plaintiff is claiming that his misconduct ticket is retaliatory, a prisoner’s claim that he was
falsely accused of a major misconduct is barred where there has been a finding of guilt. See
Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013) (holding that a factual finding in a major
misconduct proceeding has preclusive effect and is not subject to challenge in a § 1983 action).
Therefore, Plaintiff’s claims against Defendants Davis, Durant, and O’Brien regarding the allegedly
false retaliatory misconduct ticket are properly dismissed.

However, Plaintiff’s claim that

Defendant Davis failed to protect him from inmate Thompson because of his use of the grievance
system is nonfrivolous and may not be dismissed on initial review.
Plaintiff also claims that Defendant Mclean retaliated against him by refusing to give
him a grievance form so that he could file a grievance on Defendant Davis. However, Plaintiff has
no due process right to file a prison grievance. The courts repeatedly have held that there exists no
constitutionally protected due process right to an effective prison grievance procedure. See Hewitt
v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir.
2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568,
569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb.
7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the
grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F.
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App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar.
28, 1994). The Court concludes that the action of denying Plaintiff’s request for a grievance form
does not constitute adverse conduct for purpose of a retaliation claim.
Plaintiff claims that Defendants Davis, Durant, O’Brien, and Larson violated his due
process rights when they subjected him to a false misconduct conviction and prevented him from
appealing the conviction. 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 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 convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it

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relates to the creation and forfeiture of disciplinary credits1 for prisoners convicted of 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. Id.
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, Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011); 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 misconduct sanction
does not implicate the Fourteenth Amendment Due Process Clause”), adopted as judgment of court,
2011 WL 5491196 (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, a prisoner
may 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). Plaintiff has not
identified any significant deprivation arising from his convictions. 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 makes a conclusory assertion that his equal protection rights were violated
by Defendants’ conduct in this case. The Equal Protection Clause of the Fourteenth Amendment
provides that a state may not “deny to any person within its jurisdiction the equal protection of the

1

For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. M IC H . C O M P . L AW S § 800.33(5).

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laws,” which is essentially a direction that all persons similarly situated should be treated alike. U.S.
CONST ., amend. XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). A state
practice generally will not require strict scrutiny unless it interferes with a fundamental right or
discriminates against a suspect class of individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312
(1976). Because a fundamental right is not implicated in this case and Plaintiff does not allege that
he is a member of a suspect class, he is not entitled to strict scrutiny. See United States v. Kras, 409
U.S. 434, 446 (1973); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997).
To prove his equal protection claim, Plaintiff must demonstrate “intentional and
arbitrary discrimination” by the state; that is, he must demonstrate that he “has been intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff fails to make any
such allegations. Therefore, his equal protection claims are properly dismissed.
Plaintiff claims that Defendants violated his right of access to the courts. It is well
established that prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430
U.S. 817, 821 (1977). The principal issue in Bounds was whether the states must protect the right
of access to the courts by providing law libraries or alternative sources of legal information for
prisoners. Id. at 817. The Court further noted that in addition to law libraries or alternative sources
of legal knowledge, the states must provide indigent inmates with “paper and pen to draft legal
documents, notarial services to authenticate them, and with stamps to mail them.” Id. at 824-25.
The right of access to the courts also prohibits prison officials from erecting barriers that may
impede the inmate’s access to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff
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must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of
legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal
claim. Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
The Supreme Court has strictly limited the types of cases for which there may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to
attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any
other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals from
his criminal conviction, habeas corpus applications, and civil rights claims only.” Thaddeus-X v.
Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc). Moreover, the underlying action must have
asserted a non-frivolous claim. Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405
(6th Cir. 1999) (Lewis changed actual injury to include requirement that action be non-frivolous).
Because Plaintiff has not alleged that he was prevented from filing any of the enumerated types of
actions, his access to courts claim is properly dismissed.
Plaintiff claims that Defendant Russell violated his rights when he failed to take
corrective action against his subordinates after Plaintiff sent letters of complaint. Liability under
Section 1983 must be based on more than merely the right to control employees. Polk Co. v.
Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Department of Social Services, 436
U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere allegations of
respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S. at 325. A party cannot be held liable
under Section 1983 absent a showing that the party personally participated in, or otherwise
authorized, approved or knowingly acquiesced in, the allegedly unconstitutional conduct. See e.g.
Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990);
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Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982). See also Bellamy
v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845 (1984).
Supervisory officials can be held liable for the acts of their subordinates only if
plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and
that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891
F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending employee is not actionable absent a showing
that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some
other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim
requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a
time when the conduct could be prevented, or that such conduct was otherwise foreseeable or
predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must
show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient
grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932
F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory
official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D.
Mich. 1987) (Hillman, C.J.), aff’d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims
cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp.
335, 337 (W.D. Mich. 1989), aff’d 915 F.2d 1574 (6th Cir. 1990).
Plaintiff has not alleged facts establishing that Defendant Russell was personally
involved in the activity which forms the basis of his claim. Defendant Russell’s only role in this
action involved the denial of administrative grievances or the failure to act. Defendant Russell
cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
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1999), cert. denied, 530 U.S. 1264 (2000). Accordingly, the Court concludes that Plaintiff’s claims
against Defendant Russell are properly dismissed for lack of personal involvement.
Plaintiff claims that Defendants conspired to violate his rights. 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, 695 (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.
Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover,
a plaintiff must plead a conspiracy 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).
Plaintiff’s allegations of conspiracy are conclusory and speculative. His allegations,
even viewed in the light most favorable to Plaintiff, describe a number of discrete facts that occurred
over a period of time involving numerous individual officers. 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 he has been disciplined by or
subjected to objectionable treatment by a variety of prison officials in various circumstances with
which he disagreed. 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
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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 of the far more likely possibility
that the various incidents occurring during Plaintiff’s incarceration were unrelated, Plaintiff fails to
state a plausible claim of conspiracy.
In addition, the Court notes that Defendant O’Brien 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). Therefore, Defendant
O’Brien is entitled to absolute judicial immunity.
Finally, to the extent that Plaintiff is claiming his state law rights were violated, this
Court refuses to exercise pendent jurisdiction over such claims against the dismissed Defendants.
Claims raising issues of state law are best left to determination by the state courts, particularly in
the area of prison administration. United Mine Workers v. Gibbs, 383 U.S. 715, 726-727, 86 S. Ct.
1130, 1139 (1966); Moon v. Harrison Piping Supply, et al., 465 F.3d 719 (6th Cir. Sep. 28, 2006);
Smith v. Freland, 954 F.2d 343, 348 (6th Cir.), cert. denied, 504 U.S. 915, 112 S.Ct. 1954 (1992).
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That power need not be exercised in every case in which it is found
to exist. It has consistently been recognized that pendent jurisdiction
is a doctrine of discretion, not of plaintiff’s right. Its justification
lies in considerations of judicial economy, convenience and fairness
to litigants; if these are not present a federal court should hesitate to
exercise jurisdiction over state claims, even though bound to apply
state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L. Ed. 1188. Needless decisions of state law should be
avoided both as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed reading of
applicable law. Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well. Similarly, if it appears that the
state issues substantially predominate, whether in terms of proof, of
the scope of the issues raised, or of the comprehensiveness of the
remedy sought, the state claims may be dismissed without prejudice
and left for resolution to state tribunals.
United Mine Workers v. Gibbs, 383 U.S. 715, 726-727, 86 S. Ct. 1130, 1139 (1966).
Therefore, in summary, the Court will dismiss Plaintiff’s claims against Defendants
Larson, Durant, Russell, and O’Brien. The Court will serve the complaint against Defendant Davis
with regard to the claim that she failed to protect him from inmate Thompson in retaliation for his
use of the grievance procedure in violation of his First and Eighth Amendment rights and with
regard to his state-law claims.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Larson, Durant, Russell, and O’Brien 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 will decline to exercise supplemental jurisdiction over the state-law claims against those
Defendants. The Court will serve the complaint against Defendant Davis.
An Order consistent with this Opinion will be entered.

Dated: November 13, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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