Gonzalez #761448 v. Bauman et al

Filing 7

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

FORTINO GONZALEZ,
Plaintiff,
v.

Case No. 2:16-cv-266
Honorable Gordon J. Quist

CATHERINE S. BAUMAN,
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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Bauman, Giotto, Sprader, Jack, Prunick, Immel, Denman,
Russell, Maki, and Harris. The Court will serve the complaint against Defendant Henley.

Discussion
I.

Factual allegations

Plaintiff Fortino Gonzalez, a state prisoner currently confined at the Alger
Correctional Facility (LMF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Warden Catherine S. Bauman, Corrections Officers Unknown Henley and Unknown
Giotto, Deputy Warden Scott Sprader, Administrative Hearing Investigator G. Jack, Prison
Counselor Karen L. Prunick, Deputy Warden Anthony Immel, Sergeant J. B. Denman, Grievance
and Appeals Section Manager Richard D. Russell, Administrative Law Examiner Linda Maki, and
Resident Unit Manager R. Harris.
In Plaintiff’s complaint, he alleges that he has been diagnosed as suffering from
Degenerative Muscle Disease, which requires him to use a leg brace in order to walk. On March
21, 2016, at 8:25 p.m., Plaintiff was transferred to LMF from the Kinross Correctional Facility
(KCF). Defendant Henley informed Plaintiff that he had been assigned to an upper bunk in the
general population. Plaintiff explained that he could not use an upper bunk because of his disability
and that he had an accommodation for a bottom bunk detail. Plaintiff told Defendant Henley that
Patrick F. Gasperich, RN, had provided Plaintiff with a medical detail upon his arrival at LMF.
Plaintiff attaches a copy of a “special accommodations orders” form to his complaint as an exhibit.
The form states, “Housing: Bottom bunk” and is signed by Mr. Gasperich. See ECF No. 1-1,
PageID.24. When Plaintiff attempted to show him the medical detail, Defendant Henley became
visibly angry, refused to look at the medical detail, and ordered Plaintiff to place his hands behind
his back. Defendant Henley then placed Plaintiff in restraints and took him to segregation.
Defendant Henley subsequently wrote a class II misconduct ticket on Plaintiff for
“disobeying a direct order.” In the ticket, Defendant Henley stated:
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At 2025 Inmate Gonzalez #761448 Maple #227 upper bunk was
brought into the unit on a transfer from Kinross. He was informed
that he was going into cell #227 upper bunk. Gonzalez stated he
couldn’t lock in an upper bunk he had a bottom bunk detail. I
contacted Control Center and was informed he didn’t have a bottom
bunk detail on OMNI put him on the upper bunk. Gonzalez stated
put me in seg. I can’t lock in an upper bunk I have a bottom bunk
detail I then gave Gonzalez a direct order to lock in #227 for the time
being and informed him I would check with Health Service to see if
he had a detail in his file. Gonzalez then became argumentative
stating he shouldn’t be in Level IV, he was a Level II inmate again
stated put me in seg. I can’t lock in an upper bunk. I then placed
restraints on Gonzalez and he was escorted to segregation. Gonzalez
ID’d by his State ID Card and Maple Unit Master Count Board.
See ECF No. 1-2, PageID.26.
Later that evening, Defendant Denman came to Plaintiff’s segregation cell to review
the ticket with him. Plaintiff told Defendant Denman that he had done nothing wrong and asked him
to check with Health Care to verify that he had a bottom bunk detail. Defendant Denman told
Plaintiff that he would look into his claims, and that if Plaintiff was correct, he would be released
from segregation and the ticket would be “pulled.” Defendant Denman never contacted Health Care
or returned to discuss the situation with Plaintiff.
On March 22, 2016, at approximately 10:38 a.m., Defendant Jack came to Plaintiff’s
cell and asked if he wanted to write a statement or have any witnesses or documents obtained on his
behalf for the misconduct hearing. Plaintiff stated, “I don’t understand what the problem is, I can’t
get on a top bunk!” Plaintiff asked Defendant Jack why staff couldn’t just look at Plaintiff’s medical
detail, which would confirm that Plaintiff was unable to climb up to a top bunk. Defendant Jack told
Plaintiff that he would call Health Care to see if there was a medical detail, and that if there was a
detail, he was sure Plaintiff would be released from segregation.

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Defendant Jack contacted Defendant Giotto and procured a witness statement. The
statement indicated that Defendant Giotto had been contacted by Maple Unit to verify Plaintiff’s
bottom bunk detail. Defendant Giotto stated that a search of OMNI [Offender Management
Network Information] did not find a medical detail for Plaintiff. Defendant Maki conducted
Plaintiff’s hearing on the misconduct ticket on March 23, 2016. Defendant Maki did not allow
Plaintiff to speak during the hearing, demanding that Plaintiff “keep his mouth shut.” Defendant
Maki found Plaintiff guilty and sanctioned him to 20 days loss of privileges, which lasted until April
13, 2016.
Following the misconduct hearing, Plaintiff was seen by Security Classification
Committee (SCC) members Defendants Prunick, Harris, Jack, and Immel. Plaintiff was informed
that his bond would be revoked and that he would serve additional time in administrative
segregation because he had not “learned how to jail” and “would get a taste of LMF justice.”
Defendants also told Plaintiff that he was not in charge of running the prison and “just maybe, when
you leave segregation after a couple months, you’ll go to the bunk we tell you to, and not tell us
what you’re not gonna do.” Plaintiff stated that he was a level II prisoner and could not understand
why he was being placed in a level IV housing unit. Plaintiff attaches copies of security
classification screen reviews he received, dated March 21, 2016, and March 23, 2016, which show
that Plaintiff is a level II prisoner, but that the nature of his misconduct warranted an increased
security level. (ECF Nos. 1-4 and 1-5.)
Plaintiff states that each time he was seen by SCC Defendants Sprader, Immel,
Prunick, Harris, and Bauman from March 28, 2016, until May 8, 2016, they asked him if he was
done playing games, and that they would keep him in segregation for as long as it took for him to
learn. Plaintiff was finally released from segregation after forty-eight days. Following his release
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from segregation, Plaintiff filed a grievance with the help of a legal writer, which was rejected by
Grievance Coordinator Mary Bonevelle as untimely. Defendants Bauman and Russell upheld the
rejection on appeal. Plaintiff filed an appeal of his misconduct ticket on May 27, 2016. Plaintiff’s
appeal was rejected as untimely by Defendant Russell on September 23, 2016.
Plaintiff contends that Defendant Henley clearly lied in the misconduct ticket because
it was easily verifiable that Plaintiff had a bottom bunk detail. Plaintiff states that supervisory prison
staff believed Defendant Henley’s representations to be true at the time they were made and relied
on those representations to place Plaintiff in segregation. Plaintiff claims that Defendants’ conduct
violated his rights under the First, Eighth, and Fourteenth Amendments, as well as under state law.
Plaintiff seeks damages.
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
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
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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 (1994).
To the extent that Plaintiff is claiming that his class II misconduct conviction violated
his Fourteenth Amendment procedural due process rights, this claim lacks merit. A prisoner’s
ability to challenge a prison misconduct conviction depends on whether the convictions implicated
any liberty interest. A prisoner does not have a protected liberty interest in prison disciplinary
proceedings unless the sanction “will inevitably affect the duration of his sentence” or the resulting
restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 486-87 (1995). 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. A minor misconduct
conviction does not implicate the due process clause. A prisoner does not have a protected liberty
interest in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of
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his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 486-87
(1995). The Sixth Circuit routinely has held that misconduct convictions that do not result in the
loss of good time are not atypical and significant deprivations and therefore do not implicate due
process. See, e.g., Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004); Carter v. Tucker, 69 F.
App’x 678, 680 (6th Cir. 2003); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir.
June 23, 2000); Staffney v. Allen, No. 98-1880, 1999 WL 617967, at *2 (6th Cir. Aug. 12, 1999).
Plaintiff, therefore, fails to state a due process claim arising from his Class II misconduct conviction.
Moreover, Plaintiff’s claim that his placement in administrative segregation violated
his due process rights also lacks merit. In Sandin, 515 U.S. at 484, the Court set forth the standard
for determining when a prisoner’s loss of liberty implicates a federally cognizable liberty interest
protected by the Due Process Clause. According to the Sandin Court, a prisoner is entitled to the
protections of due process only when a deprivation “will inevitably affect the duration of his
sentence” or imposes an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. at 486-87; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998);
Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).
Confinement in administrative segregation “is the sort of confinement that inmates
should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459
U.S. 460, 467-73 (1983). Thus, it is considered atypical and significant only in “extreme
circumstances.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will
consider the nature and duration of a stay in segregation to determine whether it imposes an
“atypical and significant hardship.” Harden–Bey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008).

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In Sandin, the Supreme Court concluded that the segregation at issue in that case
(disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin,
515 U.S. at 484. Similarly, the Sixth Circuit has held that mere placement in administrative
segregation, and placement for a relatively short period of time, do not require the protections of due
process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir.
2010) (61 days in segregation is not atypical and significant). The Sixth Circuit has also held, in
specific circumstances, that confinement in segregation for a relatively long period of time does not
implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (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). But 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 this case, Plaintiff was confined to
segregation for a period of forty-eight days. Plaintiff fails to allege any facts showing that his
confinement in segregation was atypical and significant. Therefore, Plaintiff’s due process claims
are properly dismissed.
In addition, the Court notes that 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
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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, Plaintiff’s claims
against Defendant Maki are properly dismissed.
The Court notes that Plaintiff’s retaliation and Eighth Amendment claims against
Defendant Henley are nonfrivolous and may not be dismissed on initial review. Plaintiff claims that
when he tried to show Defendant Henley his medical detail, he became visibly angry, refused to look
at the detail, and instead falsified a misconduct on Plaintiff. Plaintiff claims that this constituted
deliberate indifference to his serious medical need, as well as retaliation for Plaintiff’s assertion of
his right to such treatment. However, Plaintiff’s claims against the remaining Defendants all relate
to the disposition of the misconduct and the review of his segregation status. Plaintiff fails to allege
facts showing that Defendants Bauman, Giotto, Sprader, Jack, Prunick, Immel, Denman, Russell,
Maki, and Harris acted with a desire to deprive him of needed medical care or to retaliate against
him for engaging in protected conduct. Therefore, Plaintiff’s allegations against Defendants
Bauman, Giotto, Sprader, Jack, Prunick, Immel, Denman, Russell, Maki, and Harris only implicate
due process and are properly dismissed.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Bauman, Giotto, Sprader, Jack, Prunick, Immel, Denman, Russell, Maki,
and Harris 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 serve the complaint against Defendant Henley.
An Order consistent with this Opinion will be entered.

Dated: August 31, 2017

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

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