Wiggins #283919 v. Russell et al

Filing 11

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

ROBERT LEON WIGGINS,
Plaintiff,

Case No. 2:17-cv-15

v.

Honorable Paul L. Maloney

RICHARD D. RUSSELL, 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, Plaintiff’s action will be dismissed for failure to state
a claim.

Factual Allegations
Plaintiff Robert Leon Wiggins, a state prisoner currently confined at the Baraga
Maximum Correctional Facility (AMF), filed this pro se civil rights action pursuant to 42 U.S.C. §
1983 against Defendants Hearing Administrator Richard D. Russell, Hearing Officer Thomas O.
Morhman, Hearing Investigator R. Mohr, Lieutenant Unknown Maki, Sergeant Unknown Baldini,
and Corrections Officer Unknown Kinasz.
Plaintiff alleges that on September 10, 2016, while he was confined at the Kinross
Correctional Facility (KCF), there was a protest in the prison yard. Plaintiff states that he did not
participate in the protest and never left his unit. Plaintiff was on his way out of the “cube,” when
the siren blew. The unit officer began his rounds and Plaintiff got back on his bunk. Once the
officer finished rounds, Plaintiff walked up the hallway to the officer station, looked at the clock, and
then went into the T.V. room.
Plaintiff states that at some point, prisoners who had been outside at the protest
returned to their units and count was taken. After count, there were no call-outs, no yard, and
telephone or j-pay use. Later, another count was taken and never cleared, so prisoners continued to
be in their cubes. Subsequently, officers left the units and went into the control center. Seconds
later, the Emergency Response Team (ERT) emerged and surrounded the units with guns drawn.
Prisoners in the cubes were gassed without warning. Prisoners were then ordered to walk backwards
with their hands up out of the unit’s backdoor.
Plaintiff was taken to the kitchen, where Defendant Kinasz asked him his name and
number. Plaintiff was strip searched in front of other prisoners and numerous officers, including
female officers. Plaintiff was then recuffed and shackled and was taken to the Marquette Branch
-2-

Prison (MBP). Plaintiff arrived at MBP on September 11, 2016, at approximately 3:00 a.m. On
September 12, 2016, Plaintiff received an “incite to riot” ticket that had been written by Defendant
Maki at KCF. The ticket was dated September 11, 2016, with a time of 1825 hours [6:25 p.m.].
Plaintiff did not receive a review of the ticket within 24 hours as required by MDOC policy.
Defendant Mohr gave Plaintiff a form to fill out giving his personal statement of the facts
surrounding the misconduct charge. Plaintiff filled out the form and dated it September 13, 2016.
He then returned the form to Defendant Mohr. Plaintiff did not receive the documents he requested
and was never interviewed by Defendant Mohr.
On September 19, 2016, Defendant Mohrman conducted a disciplinary hearing,
during which Plaintiff was not allowed to hear the witness statements or testimony. Nor was
Plaintiff allowed to present witnesses or evidence to verify his story. Plaintiff was found guilty and
received 30 days loss of privileges. On September 21, 2016, Plaintiff received a hearing after which
he was classified to administrative segregation. Plaintiff’s appeal of the misconduct conviction was
denied by Defendant Russell.
Plaintiff claims that Defendants’ conduct violated his due process rights. Plaintiff
seeks costs, compensatory and punitive damages, and equitable 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
-3-

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
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 the major misconduct charges against him were “false.” A
prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions
-4-

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
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.

1

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).

-5-

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 dueprocess claim based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 46162 (6th Cir. 2008).
As set forth above, Petitioner’s misconduct conviction did not affect the duration of
his sentence. The convictions also did not result in a significant, atypical deprivation. Petitioner
identifies two deprivations that followed his conviction. First, Petitioner suffered a temporary loss
of privileges. The Wolff court described loss of privileges as a “lesser penalt[y]” that would not
warrant “the procedures required by today’s decision . . . .” Wolff, 418 U.S. at 571 n. 19; see also
Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004) (14 day loss of privileges is not atypical and
significant); Dixon v. Morrrison, No. 1:13-cv-1078, 2013 WL 6512981 at *7 (W.D. Mich. December
12, 2013) (15 day loss of privileges is not atypical and significant). The sanction of lost privileges
here is not sufficiently significant or atypical to warrant due process protection.
Plaintiff also claims that as a result of the false misconduct, he was reclassified to
administrative segregation. The Supreme Court has held that a prisoner does not have a protected
-6-

liberty interest in the procedures affecting his classification and security because the resulting
restraint does not impose an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In Rimmer-Bey v.
Brown, 62 F.3d 789, 790-91(6th Cir. 1995), the Sixth Circuit applied the Sandin test to the claim of
a Michigan inmate that the mandatory language of the MDOC’s regulations created a liberty interest
that he receive notice and hearing before being placed in administrative segregation. The court held
that regardless of the mandatory language of the prison regulations, the inmate did not have a liberty
interest because his placement in administrative segregation did not constitute an atypical and
significant hardship within the context of his prison life. Id; see also Mackey v. Dyke, 111 F.3d 460,
463 (6th Cir. 1997). Without a protected liberty interest, plaintiff cannot successfully claim that his
due process rights were violated because, “[p]rocess is not an end in itself.” Olim v. Wakinekona,
461 U.S. 238, 250 (1983).
Moreover, the Supreme Court repeatedly has held that a prisoner has no constitutional
right to be incarcerated in a particular facility or to be held in a specific security classification. See
Olim, 461 U.S. at 245; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, 427 U.S.
215, 228-29 (1976). The Sixth Circuit has followed the Supreme Court’s rulings in a variety of
security classification challenges. See, e.g., Harris v. Truesdell, 79 F. App’x 756, 759 (6th Cir.
2003) (holding that prisoner had no constitutional right to be held in a particular prison or security
classification); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (same); O’Quinn v. Brown,
No. 92-2183, 1993 WL 80292, at *1 (6th Cir. Mar. 22, 1993) (prisoner failed to state a due process
or equal protection claim regarding his label as a “homosexual predator” because he did not have
a constitutional right to a particular security level or place of confinement). Plaintiff’s classification
-7-

to administrative segregation is nothing more than a security classification used by the prison.
Because Plaintiff does not have a constitutional right to a particular security level or classification,
he fails to state a claim.
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: August 21, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge