Sexton #156238 v. Barsch et al
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
RICKY L. SEXTON,
Plaintiff,
Case No. 2:16-cv-95
v.
Honorable Robert Holmes Bell
TIM BARSCH, 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 Ricky L. Sexton, a state prisoner currently confined at the Chippewa
Correctional Facility (URF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Baraga Maximum Correctional Facility (AMF) School Principal Tim Barsch, AMF
Acting Warden Ken Tribley, and MDOC Grievance Section Manager Richard D. Russell.
According to Plaintiff’s amended complaint (ECF No. 6-1), he was given a GED completion
exemption pursuant to MDOC Policy Directive 05.02.112 in February of 2000. On May 12, 2009,
while Plaintiff was at the Standish Maximum Correctional Facility, school principal Michelle D.
Pattoon disapproved Plaintiff’s exemption.
On December 26, 2014, while confined at AMF, Plaintiff sent a kite to Defendant
Barsch, asking for an evaluation by a school psychologist. Plaintiff did not receive a response.
Plaintiff filed a grievance on December 30, 2014. The step I grievance response by Defendant
Barsch indicates that Plaintiff could be referred to a school psychologist after he was in school for
one year. (ECF No. 6-7.) The step II grievance response by Defendant Tribley stated:
Your grievance has been reviewed. You sent a kite to the school
principal requesting to see a school psychologist as you have a
learning disability.
The Step I grievance and response have been reviewed. The Step
One respondent indicated that once you are in school for one year and
based on your teacher’s recommendation, you may be referred to a
school psychologist.
The grievance appeal has been reviewed. The investigation at Step
One was appropriate and responsive to your claim. Nothing
additional has been presented with this appeal which substantiates
your allegations. The GED Completion Exemption Form (CAJ-789)
you have included was not signed by School Principal Barsch, but by
the Warden of SMF at the time, who had full authority to disapprove
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of your request. As such, the Step One response is upheld at this
level.
(ECF No. 6-9.) Plaintiff’s step III appeal was denied by Defendant Russell on November 17, 2015.
Plaintiff claims that Defendants violated his rights under the United States
Constitution, as well as under state law. Plaintiff seeks declaratory and injunctive relief, as well as
costs.
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
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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 appears to be claiming that Defendants’ refusal to reinstate his GED
completion exemption violated his right to procedural due process because, without an exemption,
he is not eligible for parole until completion of his GED. MDOC Policy Directive 05.02.112 ¶ Y
states:
Prisoners sentenced pursuant to MCL 791.233 for a crime
committed after December 15, 1998 who received a minimum
sentence of two years or more shall not be released on parole unless
s/he has either earned a high school diploma or GED certificate.
Under this law, the Director or designee may waive the educational
restriction to allow a parole.
In addition, ¶ Z provides that GED programming is not required for prisoners who:
1. Are 65 years of age or older.
2. Were gainfully employed immediately before committing the
crime for which the prisoner is incarcerated as reflected in the presentence investigation report prepared pursuant to PD 06.01.140
“Pre-sentence Investigation and Report.” This does not include
employment in an illegal activity.
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3. Do not have the necessary proficiency in English to attain a GED
certificate. If the prisoner does not have necessary proficiency in
English, the Department shall provide English language training for
that prisoner so s/he can begin working toward the completion of
the requirements for a GED.
4. Have learning impairments. A learning impairment is defined as
a chronic condition hindering the ability to improve academic
learning as evidenced by:
a. The inability to attain a measurable advancement
(i.e., at least a .5 grade level) for reading or math as
determined by the TABE in a one year period of
continuing classroom time; and,
b. A minimum of three documented teaching
interventions to improve academic skill
development in reading or math.
5. Are unable to successfully complete the requirements for a GED
certificate at no fault of the prisoner’s own.
To establish a procedural due process violation, a plaintiff must prove that (1) he was
deprived of a protected liberty or property interest, and (2) such deprivation occurred without the
requisite due process of law. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470
F.3d 286, 296 (6th Cir. 2006); see also Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006).
Plaintiff fails to raise a claim of constitutional magnitude because he has no liberty interest in being
released on parole. There is no constitutional or inherent right to be conditionally released before the
expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
7 (1979). Although a state may establish a parole system, it has no duty to do so; thus, the presence
of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole
release. Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is
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present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio
State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc), the Sixth
Circuit, noting “the broad powers of the Michigan authorities to deny parole,” held that the Michigan
system does not create a liberty interest in parole. The Sixth Circuit reiterated the continuing validity
of Sweeton in Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011). In Crump, the court held that the
adoption of specific parole guidelines since Sweeton does not lead to the conclusion that parole
release is mandated upon reaching a high probability of parole. See id.; see also Carnes v. Engler,
76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has rejected the argument that the
Due Process Clause is implicated when changes to parole procedures and practices have resulted in
incarcerations that exceed the subjective expectation of the sentencing judge. See Foster v. Booker,
595 F.3d 353, 369 (6th Cir. 2010). Finally, the Michigan Supreme Court has recognized that there
exists no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596
N.W.2d 598, 603-04 (Mich. 1999).
Until Plaintiff has served his maximum sentence, he has no reasonable expectation of
liberty. The discretionary parole system in Michigan holds out “no more than a mere hope that the
benefit will be obtained.” Greenholtz, 442 U.S. at 11. The Michigan Parole Board’s failure or refusal
to consider Plaintiff for parole, therefore, implicates no federal right. In the absence of a liberty
interest, Plaintiff fails to state a claim for a violation of his procedural due process rights.
Plaintiff also claims that Defendants’ refusal to reinstate his GED completion
exemption constituted deliberate indifference in violation of the Eighth Amendment. The Eighth
Amendment imposes a constitutional limitation on the power of the states to punish those convicted
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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). Moreover, “[n]ot 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.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference standard
to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate
indifference standard to conditions of confinement claims)). Plaintiff has failed to allege any facts
implicating the Eighth Amendment.
Finally, Plaintiff claims that Defendants violated state law. Claims under§ 1983 can
only be brought for “deprivation of rights secured by the constitution and laws of the United States.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide redress for
a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27
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F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants violated state law therefore fails
to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks to invoke this Court’s
supplemental jurisdiction over a state-law claim, the Court declines to exercise jurisdiction. In
determining whether to retain supplemental jurisdiction, “[a] district court should consider the
interests of judicial economy and the avoidance of multiplicity of litigation and balance those interests
against needlessly deciding state law issues.” Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178,
1182 (6th Cir. 1993). Ordinarily, where a district court has exercised jurisdiction over a state-law
claim solely by virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial,
the court will dismiss the remaining state-law claims. Id. Dismissal, however, remains “purely
discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C.
§ 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). Here, the
balance of the relevant considerations weighs against the continued exercise of supplemental
jurisdiction. Accordingly, Plaintiff’s state-law claim will be dismissed without prejudice.
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
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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: August 4, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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