Thompson v. Hunsinger et al

Filing 4

Memorandum Opinion and Order dismissing this action. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in goodfaith. Judge Dan A. Polster (C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

ANDRE THOMPSON,

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Plaintiff,
v.
ANGELA HUNSIGER, et al.,
Defendants.

CASE NO. 1:12 CV 2846
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER

INTRODUCTION
On November 15, 2012, pro se plaintiff Andre Thompson, an inmate at the Southern Ohio
Correctional Facility, filed the above-captioned action under 42 U.S.C. § 1983 against Angela
Hunsiger and Onray Smoot. Plaintiff asserts he was unfairly disciplined for fighting while he was
incarcerated at the Mansfield Correctional Institution (“MANCI”). In particular, he alleges that after
a “small riot” at MANCI, Hunsiger falsely claimed she viewed plaintiff on a surveillance camera
fighting with two other inmates. Plaintiff contends Hunsiger lied about seeing him fighting on the
surveillance camera because Plaintiff is under 30 years of age and African American, and is believed
by prison officials to be a member of the Heartless Felons gang. He seeks monetary damages and
an injunction transferring him to a prison closer to Cleveland, Ohio. For the reasons below, this
action is dismissed pursuant to 28 U.S.C. § 1915(e).

STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if
it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or

fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in the complaint.” Bell At. Corp. V. Twombly, 550 U.S. 544, 564 (2007). A pleading
must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be
sufficient to raise the right to relief above the speculative level on the assumption that all the
allegations in the complaint are true. Twombly, 550 U.S. at 555. The plaintiff is not required to
include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (2009). A pleading that
offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this
pleading standard. Id.

LAW AND ANALYSIS
While plaintiff does not set forth specific constitutional bases for his claims, the court
liberally construes the complaint as seeking to assert violations of due process and equal protection.
Even construing the complaint liberally in a light most favorable to the plaintiff, however, it does
not contain allegations reasonably suggesting he might have a valid federal claim. See, Lillard v.
Shelby County Bd. of Educ,, 76 F.3d 716 (6th Cir. 1996)(court not required to accept summary
allegations or unwarranted legal conclusions in determining whether complaint states a claim for
relief).

A. Due Process

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An in forma pauperis claim may be dismissed sua sponte, without prior notice to the
plaintiff and without service of process on the defendant, if the court explicitly states that
it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim
for one of the reasons set forth in the statute. Chase Manhattan Mortg. Corp. v. Smith,
507 F.3d 910, 915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir.
1990); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).
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Prisoners have narrower liberty interests than other citizens as “lawful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995). The
question of what process is due is reached only if the inmate establishes the deprivation of a
constitutionally protected liberty interest. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
The Due Process Clause alone does not confer a liberty interest in freedom from state actions
within the sentence imposed upon the inmate. Sandin, 515 U.S. at 480. “Discipline by prison
officials in response to a wide range of misconduct falls within the expected parameters of the
sentence imposed by a court of law.” Id. at 485. There is no general liberty interest in avoiding
transfer to more adverse conditions of confinement. Wilkinson, 545 U.S. at 221. A prison
disciplinary proceeding therefore does not give rise to a protected liberty interest unless the
restrictions imposed as a result of the hearing constitute an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
Plaintiff fails to state a claim for violation of due process. There are simply no allegations
to support a conclusion that he might have been subjected to the imposition of “atypical and
significant hardship ... in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

B. Equal Protection
In making an equal protection challenge, a plaintiff bears the initial burden of demonstrating
that a discrimination of some substance has occurred against him which has not occurred against
other individuals who were similarly situated. City of Cleburne, Texas v. Cleburne Living Center,
473 U.S. 432, 439 (1985); Clements v. Flashing, 457 U.S. 957, 967 (1982). Even liberally
construed, the complaint’s conclusory allegations of discrimination based on race, age and perceived
gang member status do not meet this burden.

CONCLUSION
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Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(e). The court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good
faith.
IT IS SO ORDERED.

/s/Dan Aaron Polster 2/20/13
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE

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