Bennett #148380 v. Williams et al

Filing 8

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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

RONALD BENNETT,
Plaintiff,

Case No. 2:17-cv-35

v.

Honorable Janet T. Neff

HEIDI WILLIAMS, 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 Ronald Bennett, a state prisoner currently incarcerated at the Kinross
Correctional Facility (KCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants MDOC Director Heidi Williams, Corrections Officer Unknown Goodell, and Deputy
Warden D. Dailey. Plaintiff alleges that he was transferred to KCF on April 21, 2016. Upon his
arrival, Defendant Goodell told Plaintiff that his word processor was being confiscated because KCF
did not allow “typewriters that take disks.” Defendant Goodell told Plaintiff that his word processor
was never on the historical approval list, and Plaintiff responded that his word processor had been
“grandfathered in” pursuant to Cain v. Department of Corrections, Ingham County Court No. 8861119-AZ. Defendant Goodell told Plaintiff that the Cain suit no longer applied and that he was
issuing Plaintiff a misconduct report for possession of contraband.
On April 27, 2016, the class III misconduct report was reviewed with Plaintiff. On
May 3, 2016, Plaintiff received a hearing on the misconduct with Prison Counselor J. Metro.
Plaintiff presented a copy of the stipulation and order issued by the Cain court. Plaintiff stated that
the word processor was sent to him while he was housed at the State Prison of Southern Michigan
in Jackson in 1992. At that time, a 1988 court ordered stay was in effect on the implementation of
the policy directive regarding prisoner word processors. Plaintiff also told Metro that his property
receipts had mysteriously disappeared, but that he had four receipts from two different repair
companies indicating that the word processor had been sent out for repair and returned to him.
Metro refused to investigate Plaintiff’s claims and found that his word processor had never been on
the “historical approval list.” Plaintiff’s word processor was found to be contraband and Plaintiff
was told he could have it sent home or destroyed.

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Plaintiff filed an appeal, which was denied by Defendant Dailey, who stated that
“proof positive of ownership has not been and could not be established by prisoner.” Defendant
Dailey also concluded that the Cain case was irrelevant. On October 31, 2016, Plaintiff was called
to the property room and Defendant Goodell asked him for the receipt for his word processor.
Plaintiff presented his receipt, but Defendant Goodell told him that it did not contain the proper
serial number. Plaintiff told Defendant Goodell “it must have been the receipt to the word processor
that was mistakenly sent to him in 2008 by the company repairing his word processor.” Plaintiff
claims that he returned the word processor that did not belong to him to the repair company, and
they subsequently returned his own word processor to Plaintiff.
On October 31, 2016, Plaintiff was reviewed on a class II misconduct ticket for
possession of forged documents. On November 2, 2016, Plaintiff had a hearing before Hearing
Officer Menard. Plaintiff explained that he had given Defendant Goodell the wrong receipt and that
it was not forged. Menard offered Plaintiff the opportunity to waive the hearing and plead guilty,
for which Plaintiff would only receive one day loss of privileges. Plaintiff agreed because he
believed he was pleading guilty to a lesser offense.
On November 3, 2016, Plaintiff received a copy of the hearing report for the charge
of “possession of forged documents: forgery,” which indicated that the receipt was handwritten and
easily forged “as prisoner can obtain MDOC forms and write [their] own paperwork.” See ECF No.
1-1, PageID.19. Plaintiff’s subsequent appeal was denied on December 20, 2016. Plaintiff states
that because the misconduct was a class II, he was not entitled to a hearing investigator.
Plaintiff claims that Defendants’ conduct violated his procedural due process rights.
Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief.

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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
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

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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 his class III misconduct conviction and the subsequent

loss of his word processor violated his due process rights under the Fourteenth Amendment. The
elements of a procedural due process claim are: (1) a life, liberty, or property interest requiring
protection under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate
process. Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006).
Plaintiff claims that Defendants’ conduct violated due process and resulted in the
improper deprivation of his word processor, despite the fact that he should have been allowed to
keep it pursuant to the Cain case. Initially, the Court notes that it is clear that Plaintiff received due
process of law. In all cases where a person stands to be deprived of his life, liberty or property, he
is entitled to due process of law. This due process of law gives the person the opportunity to
convince an unbiased decision maker that, for example, he has been wrongly or falsely accused or
that the evidence against him is false. The Due Process Clause does not guarantee that the procedure
will produce a correct decision. “It must be remembered that even if a state decision does deprive
an individual of life, [liberty], or property, and even if that decision is erroneous, it does not
necessarily follow that the decision violated that individual’s right to due process.” Martinez v.
California, 444 U.S. 277, 284, n.9 (1980). “[T]he deprivation by state action of a constitutionally
protected interest in ‘life, liberty or property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v.

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Burch, 494 U.S. 113, 125 (1990) (emphasis in original). Further, an inmate has no right to counsel
in disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 569-70 (1974); Franklin v. Aycock,
795 F.2d 1253, 1263 (6th Cir. 1986).
Plaintiff attaches a copy of the class III misconduct hearing report dated May 3, 2016.
The hearing report by Hearing Officer Metro, who is not a defendant in this case, states that the
evidence considered in this case was:
Prisoner Bennett #148380 is present for this hearing and states “the
standardized property list was not established until 2003. That was
the end of the Cain case, that case allowed us to keep the typewriter.
My typewriter doesn’t require a disc to operate I can keep this
typewriter, my typewriter was grandfathered in. I have a statement
prepared.” (See attached)
See ECF No. 1-1, PageID.16. Metro also noted:
Prisoner does not have proof of purchase, only receipts for sending
it out for repair. The typewriter takes a disc but it is not required for
function.
KCF Property Officer Goodell states that the disc is no longer
available for purchase and the typewriter is not on the standardized
property list or the historical property list.
Prisoner Bennett can appeal this finding and has been advised of that
right.
Id. In the reasons for finding section, Metro stated:
The typewriter in question was never on the approved historical
property list, and is not on the current standardized property list. The
typewriter listed on the contraband removal form takes a disc and the
disc [is] no longer available for purchase. The only approved
typewriter on the standardized list is the Swintec 2410CC (clear
cabinet portable typewriter)
PD 04.07.112 Prisoner Personal Property

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Contraband is any personal property which is not specifically
authorized by PD 04.07.112, authorized property in excess of
allowable limits, authorized property which has been altered,
authorized property which was obtained or sent from an unauthorized
source, metered envelopes that reflect tampering, and authorized
property which belongs to another prisoner.
Q. Subject to other limitations set forth in this policy, a prisoner shall
be permitted to keep a typewriter legitimately purchased prior to July
15, 2003, unless it requires an accessory that is no longer available
for purchase, or a disk or diskette, to operate.
Id.
Plaintiff filed an appeal of the misconduct conviction. In the appeal, Plaintiff asserted
that the reasons for Metro’s findings were insufficient because:
[T]he initial standardized list referenced by the reporting officer, i.e.,
PD-BCF-53.01, was enjoined by the case of Cain v. MDOC, Case
No. 88-61119-AZ in 1988. The enjoining of the implementation of
the 1988 policy continued the wardens’ discretion in the allowance
of property into their facilities at the time.
See ECF No. 1-1, PageID.17. Plaintiff also stated:
On August 18, 1992, the Hon. Judge Giddings, the presiding judge in
Cain, issued [an] order which resulted in the grandfathering of
diskoperated typewriters. Further, in 2002, the MDOC issued Policy
Directive 04.07.112(P) which stated that if “a prisoner received a
typewriter or word processor prior to January 12, 1998, he/she must
be allowed to keep it. This requirement was further clarified by PD
04.07.112C(11), which states that “typewriters which require disks
or diskettes to operate are prohibited.” This is where the hearing
officer’s reasons for findings fails. The hearing officer as well as the
reporting officer has interpreted the language of the policy as diskoperated typewriters themselves as being prohibited - where the
policy clearly states that if the typewriter “requires an accessory that
is no longer available for purchase, or a disk or diskette, “to operate.”
My typewriter does not require disks or diskettes to operate, and was
legitimately purchased by me in 1994.
Id. at PageID.17-PageID.18.

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Plaintiff’s appeal was denied by Defendant Dailey on May 13, 2016, who stated:
The misconduct was written, reviewed and heard within the scope of
Policy, Procedure and Administrative Rules. Prisoner lists that Cain
case as his defense for the contraband misconduct and states that the
typewriter is “grandfathered.” It is found that the facts of the Cain
case are irrelevant in this matter as proof positive of ownership has
not nor can be established by prisoner. Prisoner must establish that
HE purchased the item in question to create ownership, this has not
been completed therefore the charge, hearing and disposition is
upheld.
Id.
A review of the attachments to Plaintiff’s complaint clearly shows that he had a
hearing before an individual who is not named as a defendant in this case, which gave him the
opportunity to convince an unbiased decision maker that he had been wrongly accused of possession
of contraband and should be allowed to keep his word processor. As noted above, the Due Process
Clause does not guarantee that the procedure will produce a correct decision. Therefore, Plaintiff’s
claim regarding the deprivation of his word processor is properly dismissed.
Moreover, to the extent that Plaintiff is claiming that the deprivation of his word
processor did not comply with state law, this claim is barred by the doctrine of Parratt v. Taylor,
451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt,
a person deprived of property by a “random and unauthorized act” of a state employee has no federal
due process claim unless the state fails to afford an adequate post-deprivation remedy. If an
adequate post-deprivation remedy exists, the deprivation, although real, is not “without due process
of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivation
of property, as long as the deprivation was not done pursuant to an established state procedure. See
Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). To the extent that Plaintiff’s claim is premised

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upon allegedly unauthorized acts of a state official, he must plead and prove the inadequacy of state
post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs
v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s
failure to sustain this burden requires dismissal of his § 1983 due-process action. See Brooks v.
Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013). Alternatively, Michigan law authorizes actions
in the Court of Claims asserting tort or contract claims “against the state and any of its departments,
commissions, boards, institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The
Sixth Circuit specifically has held that Michigan provides adequate post-deprivation remedies for
deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a
state-court action would not afford him complete relief for the deprivation, either negligent or
intentional, of his personal property. Accordingly, Plaintiff’s claim regarding the loss of his word
processor will be dismissed.
Plaintiff also claims that Defendant Goodell improperly wrote a class II misconduct
ticket on him for possession of forged documents: forgery. As a result, Plaintiff is prohibited from
participating in facility fundraising purchases of store items and from obtaining a prison job which

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involves computers. Plaintiff asserts that he pleaded guilty to the misconduct because he mistakenly
thought he was pleading guilty to a lesser charge.
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. 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).
Therefore, it is clear that Plaintiff was not denied good time or disciplinary credits as a result of his
Class II misconduct conviction. The Sixth Circuit has routinely 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.

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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: May 23, 2017

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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