Mason v. LaPointe et al
Filing
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Memorandum Opinion and Order dismissing 1 Complaint under 28 U.S.C. §1915(e). This Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Jack Zouhary on 11/26/12. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Matt Mason,
Case No. 3:12 CV 1881
Plaintiff,
MEMORANDUM OPINION
AND ORDER
-vsJUDGE JACK ZOUHARY
Virginia LaPointe, et al.,
Defendants.
INTRODUCTION
Pro se Plaintiff Matt Mason filed this action under 42 U.S.C. §§ 1981 and 1985 against Allen
Correctional Institution (“ACI”) Head Librarian Virginia LaPointe, ACI Corrections Officer David
Dunifon, ACI Unit Manager Cynthia Zwiebel, ACI Unit Manager Administrator Brooke
Featheringham, ACI Conduct Report Hearing Officer Sergeant Rohdes, ACI Conduct Hearing
Officer Sergeant Pugsley, ACI Rules Infraction Board Lieutenant Greta Callahan, and ACI Warden
John Coleman. Plaintiff alleges he was disciplined for rightfully possessing legal material belonging
to another inmate. He seeks monetary damages and expungement of his conduct record.
BACKGROUND
According to a prison conduct report filed in connection with the incident at the center of
Plaintiff’s Complaint, on May 11, 2011, Officer David Dunifon noticed Plaintiff in the front of the
ACI H-4 housing unit and stopped to question him (Doc. 1-2 at 1). Plaintiff was carrying legal
paperwork he prepared for Inmate Frankie Graewe. Plaintiff told Officer Dunifon he was waiting
for Graewe to give him a motion prepared by Plaintiff. Officer Dunifon believed Plaintiff was not
a law library clerk, and thus was not authorized to prepare legal materials or provide legal assistance
to other inmates. According to Officer Dunifon’s statement in the conduct report, legal work
belonging to other inmates is considered to be contraband. According to Plaintiff, Officer Dunifon
confiscated the motion and left the area to confer with Unit Managers Cynthia Zwiebel and Brooke
Featheringham (Doc. 1 at 6). Upon his return, Officer Dunifon charged Plaintiff with a conduct
violation for possession of contraband (Doc. 1-2). Hearing Officer Sergeant Rohdes reviewed the
conduct report submitted by Officer Dunifon and found Plaintiff guilty of a conduct violation.
Sergeant Rohdes issued a verbal reprimand to Plaintiff as a sanction for the offense. No other
sanctions were imposed; however, the motion was not returned to Plaintiff (Doc. 1 at 7).
Two weeks later, Virginia LaPointe, the head librarian at ACI, summoned Plaintiff to ask
him about a document typed on a library Westlaw computer which suggested Plaintiff was
continuing to provide unauthorized legal services to Graewe (Doc. 1-2 at 6). The document
appeared to be Graewe’s affidavit, which stated Graewe was unfamiliar with the law and unable to
successfully prosecute his habeas corpus petition without Plaintiff’s assistance. The affidavit
indicated Plaintiff drafted and typed every filing submitted in Graewe’s habeas case.
As a result of his affidavit, Plaintiff was issued a second conduct report on May 26, 2011 for
violation of institutional rules (Doc. 1-2 at 5). LaPointe noted that inmates were required by Ohio
Department of Rehabilitation and Corrections (“ODRC”) Policy 59-LEG-01 to seek assistance for
legal work from a library staff member who would assign the specific task to one of the inmate
clerks (Doc. 1-2 at 6). Lapointe stated that Graewe had not made such a request to library staff, and
Plaintiff was not a law library clerk. The ODRC Policy also indicates that managing officers may
approve individual arrangements for inmates to assist other inmates, but those arrangements are
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made and monitored by the officers to ensure the assistance is proper and without abuse of rules
regarding remuneration (Doc. 1-3 at 5). Nothing in Plaintiff’s pleading suggests that Graewe
requested the required special arrangement from a managing officer.
The Rules Infraction Board conducted a hearing on the second conduct report (Doc. 1-2 at
7). The Board, chaired by Lieutenant Greta Callahan, found Plaintiff guilty of the charge, and
recommended the Warden impose a ten-day sentence in disciplinary control. Plaintiff attempted to
file grievances to contest the decision of the Rules Infraction Board but was told to follow the
appeals process for conduct violations (Doc. 1-2 at 4). Plaintiff then appealed the grievance to
Warden John Coleman, who ultimately upheld the decision of the Rules Infraction Board (Doc. 1-2
at 13).
In his Complaint, Plaintiff states he is serving a sentence of twenty years to life for
aggravated murder and has been incarcerated since 1991 (Doc. 1 at 2). He contends he worked in
the law library at other institutions and considers himself to be a certified legal clerk. He
successfully assisted other prisoners with litigation in Ohio courts and with federal habeas corpus
proceedings in the federal courts in Ohio as well as the United States Court of Appeals for the Sixth
Circuit, and the United States Supreme Court (Doc. 1 at 3). Plaintiff admits assisting Graewe with
his habeas corpus petition in federal court, alleging Graewe could not find competent legal
assistance at ACI (Doc. 1 at 8). Plaintiff disputes he was in possession of another inmate’s legal
materials, arguing the motion he had prepared did not become Graewe’s property until Plaintiff
successfully delivered it to Graewe and Graewe signed it (Doc. 1 at 6).
Plaintiff contends Defendants made clear their intent to prevent him from representing
inmate clients. He alleges his only viable option to continue assisting inmates with legal filings was
to seek a transfer to another institution (Doc. 1 at 10). Because he believed his request for a transfer
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would be denied, he “refused to lock,” knowing such a serious offense would likely result in time
in segregation and a transfer. His calculation proved to be correct. He was placed in segregation
for 310 days and then transferred to the London Correctional Institution. He contends local control
placement was necessary to transfer out of ACI; however, he alleges it will likely be considered
adversely by the parole board. He also experienced physical and psychological discomforts
associated with his extended stays in segregation.
Plaintiff asserts eight claims for relief. Claims one through four pertain to the incident on
May 11, 2011, and claims five through eight pertain to the May 26, 2011 incident. Plaintiff’s first
and fifth causes of action allege Defendants conspired to deprive Plaintiff of his civil rights in
violation of 42 U.S.C. § 1985. The fifth cause of action also asserts LaPointe, Pugsley, Callahan,
Coleman, and Zwiebel retaliated against him for filing a large number of grievances. Plaintiff’s
second and sixth causes of action claim Defendants violated his right to freedom of speech under
the First Amendment. His third and seventh causes of action assert Defendants denied him due
process under the Fourteenth Amendment. Plaintiff’s fourth and eighth causes of action contend
Defendants deprived him of his derivative right of access to the courts under the First Amendment.
ANALYSIS
Pro se pleadings are to be liberally construed. Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a district court is
required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e)(2) if it fails to state a
claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Brown v.
Bargery, 207 F.3d 863, 865–66 (6th Cir. 2000). A claim lacks an arguable basis in law or fact when
it is premised on an indisputably meritless legal theory or when the factual contentions are clearly
baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Lawler v. Marshall, 898 F.2d 1196, 1199
(6th Cir. 1990).
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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). A cause of action fails to state
a claim upon which relief may be granted when it lacks plausibility in the complaint. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 564 (2007). 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. Id. (internal citation omitted). A 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. 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. In reviewing a complaint, courts must construe the pleading in the light most
favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
Conspiracy Claims under 42 U.S.C. § 1985
A conspiracy claim pursuant to 42 U.S.C. § 1985 must be one which deprives an individual
of equal protection under the law. To state a claim for relief under Section 1985, a plaintiff must
allege: (1) a conspiracy; (2) for the purpose of depriving a person or a class of persons, directly or
indirectly, of equal protection of the laws; (3) through an act in furtherance of the conspiracy; (4)
which causes injury to plaintiff or plaintiff’s property or deprives him of any right or privilege of
a citizen of the United States. Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003). The acts that
allegedly deprived a plaintiff of equal protection of the law “must be the result of class-based
discrimination.” Id. (citing Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992)). A plaintiff must
allege sufficient facts to link two or more defendants in the conspiracy and to establish the requisite
“meeting of the minds” essential to the existence of the conspiracy. Coker v. Summit County
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Sheriff’s Dep’t, 90 F. App’x 782, 789 (6th Cir. 2003) (quoting McDowell v. Jones, 990 F.2d 433,
434 (8th Cir. 1993)).
Here, Plaintiff fails to allege facts suggesting an agreement to engage in class-based
discrimination. First, he does not allege any facts suggesting which protected class of individuals
he believes was the target for discrimination, nor does he allege his membership in this protected
class. Prisoners are not a suspect class for purposes of an equal protections analysis. Wilson v.
Yaklick, 148 F.3d 596, 604 (6th Cir. 1998). In addition, Plaintiff does not allege discrimination. The
ODRC regulations prohibit all inmates from engaging in the practice of law in prison. Plaintiff does
not allege he was treated differently than other inmates in this respect.
Moreover, even if Plaintiff had alleged class-based discrimination, he provided only
conclusory allegations suggesting Defendants acted in concert. His entire conspiracy claim is based
on allegations that he was issued a conduct report by LaPointe and found guilty of the conduct
charge at a subsequent hearing by other Defendants (Doc. 1 at 8–9). This describes the procedure
by which all conduct reports are heard. Plaintiff does not allege facts to suggest there was a meeting
of the minds for a common purpose other than the one for which it was intended -- i.e., to address
inmate conduct violations. Conspiracy claims must be pled with a degree of specificity. Gutierrez
v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987) (“[V]ague and conclusory allegations unsupported
by material facts will not be sufficient to state [a conspiracy] claim under § 1983.”). Plaintiff’s
vague and conclusory allegations are not sufficient to state a Section 1985 claim for conspiracy.
Retaliation
Plaintiff also alleges Defendants LaPointe, Pugsley, Callahan, and Coleman charged him
with a conduct violation and proceeded with a Rules Infraction Board hearing to retaliate against
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him for filing grievances against prison personnel and medical department staff. To state a prima
facie case for retaliation prohibited by the First Amendment, Plaintiff must establish: (1) he engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from continuing to engage in the protected conduct; and (3) a causal connection
exists between the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Protected Conduct
Plaintiff first must establish he engaged in conduct protected by the First Amendment. Id.
at 394–95. Plaintiff claims Defendants retaliated against him for filing numerous grievances against
various prison personnel (Doc. 1 at 9). Filing a grievance against prison officials is conduct
protected by the First Amendment. Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010); Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Filing frivolous grievances, however, is not protected
conduct. Hill, 630 F.3d at 472. Plaintiff asserts he filed a number of grievances against various
personnel, including Zweibel, medical staff, and other criminal complaints with outside prosecuting
authorities. Plaintiff fails to provide copies of the alleged grievances sent to outside prosecuting
authorities, but has attached at least one grievance directed towards ACI and two informal
complaints (Doc. 1-2 at 2-3, 8). Although Plaintiff is unclear on this point, he has sufficiently
alleged protected conduct through filing a grievance and informal complaints.
Adverse Action
Plaintiff next must establish that Defendants took an adverse action against him.
Thaddeus–X, 175 F.3d at 396. An adverse action is one that is “capable of deterring a person of
ordinary firmness” from exercising the constitutional right in question. Bell v. Johnson, 308 F.3d
594, 606 (6th Cir. 2002). Plaintiff does not have to show actual deterrence. Harbin-Bey v. Rutter,
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420 F.3d 571, 579 (6th Cir. 2005). Even the threat of an adverse action can satisfy this element if
the threat is capable of deterring a person of ordinary firmness from engaging in the protected
conduct. Hill, 630 F.3d at 472; Thaddeus-X, 175 F.3d at 398. While this element is not an overly
difficult one to meet, certain threats or deprivations are so de minimis that they do not rise to the
level of being constitutional violations. Id.
Plaintiff alleges four adverse actions: (1) LaPointe filed a conduct report against him for
providing unauthorized legal assistance to another inmate; (2) Pugsley made the incorrect decision
as a hearing officer to refer the conduct report to the Rules Infraction Board; (3) Rules Infraction
Board Chairman Callahan found him guilty of the conduct charge; and (4) Warden Coleman refused
to overturn the conduct report. Receiving a conduct report which could affect parole or result in
placement in segregation potentially would deter a person of ordinary firmness from exercising the
constitutional right to file grievances. See Thaddeus-X, 175 F.3d at 396. Thus, Plaintiff has alleged
an adverse action.
Motivation for Adverse Action
It must next be determined whether Defendants’ subjective motivation for taking the adverse
action was at least in part to retaliate against Plaintiff for engaging in protected conduct.
Thaddeus–X, 175 F.3d at 399. If Plaintiff can show Defendants’ adverse actions were at least
partially motivated by his protected conduct, the burden then shifts to Defendants to show they
would have taken the same action even absent such protected conduct. Id.
Plaintiff does not allege sufficient facts to reasonably suggest the conduct violation and
disciplinary hearings were motivated by previously filed grievances. Plaintiff admits that he was
assisting Graewe without authorization or staff approval in violation of ODRC regulations. He
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acknowledges that ACI personnel told him that he was not authorized to provide legal services
without approval, and should have either referred Graewe to the law librarian for assignment to a
law clerk or referred him to his managing officer for permission to seek assistance from another
inmate. Plaintiff disagreed with this policy and protested its applicability to his situation. His
conduct report was for violation of this ODRC regulation. There are no allegations in the Complaint
suggesting Defendants’ actions were motivated by grievances Plaintiff wrote against other prison
personnel in the past, as opposed to being based on the conduct for which he was found guilty and
sanctioned. Thus, Plaintiff’s retaliation claim fails because he has not sufficiently pled that
Defendants’ adverse action was motivated, at least in part, by his participation in protected conduct.
Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005).
Freedom of Speech
In his second and sixth causes of action, Plaintiff asserts he was disciplined for drafting legal
documents for another inmate, a violation of his First Amendment guarantee of freedom of speech.
Although incarceration does not completely deprive prisoners of constitutional protections, prisoners
have more limited rights than individuals in society at large. Shaw v. Murphy, 532 U.S. 223, 229
(2001). “Lawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a refraction justified by the considerations underlying our penal system.” In
re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998) (quoting Price v. Johnston, 334 U.S. 266, 285
(1948)). In reviewing prisoner First Amendment claims, courts will uphold a prison regulation if
it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987).
Plaintiff was disciplined for engaging in the unauthorized practice of law by drafting legal
documents for another inmate to file in court. The prison provides legal assistance to inmates
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through inmate law clerks assigned and monitored by the law librarian. Plaintiff was not an ACI
law clerk and did not work in the prison’s law library. Prisoners can also approach their Unit
Managers for approval to obtain the assistance of an inmate who is not a law clerk. Plaintiff was
not acting with a Unit Manager’s approval. The regulations prohibiting inmates from engaging in
unauthorized practice of law are in place for security purposes to ensure one inmate is not indebted
to another inmate for any form of remuneration (Doc. 1-3 at 4). Disciplining Plaintiff for preparing
legal documents for other inmates without authorization was reasonably related to legitimate
penological interests in maintaining order and ensuring stability in the prison. Thus, Defendants did
not deny Plaintiff freedom of speech.
Access to the Courts
In his fourth and eighth causes of action, Plaintiff asserts violations of his First Amendment
right of access to the courts. Specifically, Plaintiff claims he has a constitutional right under the
First Amendment to assist Graewe with his legal actions. There is no corresponding right for an
inmate to be a jailhouse lawyer or to act in a representative capacity; however, prisoners are entitled
to receive assistance from jailhouse lawyers where no reasonable alternatives are present to provide
them with access to the courts. Johnson v. Avery, 393 U.S. 483, 490 (1969); Gibbs v. Hopkins, 10
F.3d 373, 378 (6th Cir. 1993). In short, Plaintiff has no independent right to act like a lawyer, or to
assume the role of advocate. Gibbs, 10 F.3d at 378. Plaintiff can only succeed on this claim if
Graewe had no other reasonable alternatives to provide him with access to the courts.
Furthermore, in this Circuit, an inmate’s right to assist another prisoner “is wholly derivative
of that prisoner’s right of access to the courts.” Thaddeus-X, 175 F.3d at 395. To state a claim for
relief, Defendants’ particular actions must have prevented Graewe from pursuing, or caused the
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rejection of, a specific non-frivolous direct appeal, habeas corpus petition, or civil rights action.
Lewis v. Casey, 518 U.S. 343, 351 (1996). The right of access to the courts is directly related to an
underlying claim, “without which a plaintiff cannot have suffered injury by being shut out of court.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002). A plaintiff must “plead and prove prejudice
stemming from the asserted violation.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
Plaintiff fails to show that inmate Graewe did not have reasonable alternatives. Plaintiff
simply alleges that Graewe wished to have Plaintiff’s assistance because he was “unable to present
his claims himself and was unable to find competent assistance anywhere else within ACI” (Doc.
1 at 7). Plaintiff “does not allege that [Graewe] was denied access to the legal materials” in the
prison’s law library, or that Graewe was denied access to any other resources available at ACI. See
Roberts v. Croft, 2012 WL 3061384, at *9 (N.D. Ohio 2012). The prison law library had inmate law
clerks available to assist Graewe and a law librarian to supervise that program. If Graewe was
unhappy with the assistance he received from the prison’s law clerks, he could request his unit
manager select an inmate to provide assistance. He does not have the right to request a specific
inmate, nor does a specific inmate have the right to be appointed. While Plaintiff clearly believes
the services he provided to Graewe were superior to those Graewe could have received from the
inmate law clerks hired by ACI, the prison’s decision to deny Plaintiff’s assistance did not deprive
Graewe access to the courts.
Furthermore, there is no indication in the pleading Graewe was actually denied access to the
courts. Graewe’s habeas corpus petition was not dismissed due to the actions of Defendants in
prohibiting Plaintiff from representing him. Graewe’s habeas petition was denied on the merits of
the claims he asserted. See Graewe v. Williams, 2011 WL 3652400, at *1 (N.D. Ohio 2011). It was
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not denied because Defendants confiscated the papers Plaintiff prepared for Graewe. In fact,
Graewe filed a motion for extension of time on May 17, 2011, which was granted on May 19, 2011.
Id. The magistrate carefully examined the grounds for relief asserted in Graewe’s petition, which
Plaintiff contends he prepared for Graewe, and found them to be without merit. Id. Defendants’
actions did not cause Graewe’s petition to be dismissed and therefore did not deny him access to the
courts. Because Plaintiff’s claims are derivative of Graewe’s right, and because Plaintiff failed to
allege Graewe lacked reasonable alternatives, Plaintiff’s fourth and eighth claims fail.
Due Process
In his third and seventh causes of action, Plaintiff asserts that Defendants denied him due
process by subjecting him to institutional discipline. The Fourteenth Amendment provides that a
state may not “deprive any person of life, liberty, or property, without due process of law.” The
Due Process Clause has a procedural component and a substantive component, each imposing
different constitutional limitations on government power. Once a plaintiff establishes the existence
of a protected liberty or property interest, the procedural due process limitation requires a plaintiff
be given the opportunity to be heard “in a meaningful manner.” See Loudermill v. Cleveland Bd.
of Educ., 721 F.2d 550, 563 (6th Cir. 1983). It does not require that the government refrain from
making a choice to infringe upon a person’s life, liberty, or property interest. It simply requires that
the government provide “due process” before making such a decision. Howard v. Grinage, 82 F.3d
1343, 1349–53 (6th Cir. 1996). Procedural due process focuses on the process provided rather than
the nature of the right at stake.
Substantive due process, on the other hand, serves the goal of preventing “governmental
power from being used for purposes of oppression,” regardless of the fairness of the procedures
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used. Daniels v. Williams, 474 U.S. 327, 331 (1986). Substantive due process serves as a check on
official misconduct which infringes on a fundamental right not otherwise specified in the Bill of
Rights, or as a limitation on official misconduct, which although not infringing on a fundamental
right, is so literally “conscience shocking” as to rise to the level of a constitutional violation.
Howard, 82 F.3d at 1349.
The first step in both due process inquiries is to determine whether a protected liberty or
property interest has been infringed by Defendants. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
Prisoners have narrower liberty and property 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 Due Process Clause, standing alone, does not provide a liberty or property interest in
freedom from government action taken within the sentence imposed. Id. at 480. Furthermore, the
Constitution itself does not guarantee a liberty interest in avoiding transfer to more adverse
conditions of confinement. Wilkinson, 545 U.S. at 221. Therefore, prison discipline will not give
rise to a protected liberty interest unless the sanction imposes an “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
Generally, unless placement in segregation is accompanied by a withdrawal of good time
credits or is for a significant period of time that presents an unusual hardship on the inmate, no
liberty or property interest will be found. Id. Plaintiff was sentenced to ten days in disciplinary
segregation as a result of his continued efforts to provide unauthorized legal services to Graewe.
The decision of the Rules Infraction Board does not state it imposed a revocation of good time
credits along with the term of segregation. Temporary placement in disciplinary confinement as a
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result of Plaintiff’s misconduct is within the range of confinement normally expected for one serving
an indeterminate term of twenty years to life. Sandin, 515 U.S. at 487. This consequence does not
impose an atypical or significant hardship in relation to ordinary incidents of prison life. Plaintiff
therefore had no liberty interest in avoiding placement in segregation and the due process clause was
not triggered by this action.
Plaintiff contends he was later placed in administrative segregation for 310 days for “refusing
to lock” (Doc. 1 at 10). This claim is unrelated to the sanction imposed for assisting Graewe.
Moreover, Plaintiff intentionally engaged in conduct which he knew would result in this sanction
with the hope the sanction would also include an institutional transfer. He does not allege facts to
suggest he was denied a hearing with notice and an opportunity to be heard prior to the imposition
of this sanction. Plaintiff’s substantive due process claim is also without merit.
Plaintiff does not allege facts to suggest a substantive right not otherwise specified in the
Constitution was implicated, and his claim would therefore have to be premised on conduct alleged
to be so severe it shocks the conscience. Plaintiff seems to argue that because of certain conditions
within ACI and Defendants’ actions towards him, he was left with no choice but to intentionally
engage in wrongful conduct to seek a transfer. However, Plaintiff does not specify what conditions
violated his right to due process, or that there were any conditions that “shocked the conscience.”
Plaintiff’s segregation was the result of intentional conduct, as discussed above, and his allegations
of the segregation conditions are insufficient to show a violation. Plaintiff also does not allege he
pursued any other avenues to seek such a transfer from ACI, other than the wrongful behavior
discussed. It is well understood that a citizen does not suffer constitutional deprivation with every
form of harassment by a government agent. Parate v. Isibar, 868 F.2d 821, 832 (6th Cir. 1989).
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These reasons, combined with Plaintiff’s misconduct in assisting Graewe, show that Plaintiff’s
situation was not so “conscience shocking” as to warrant relief.
Furthermore, where a specific Amendment provides an explicit source of constitutional
protection against a particular sort of governmental conduct, “that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” See
Graham v. Connor, 490 U.S. 386, 395 (1989). Plaintiff asserts a substantially similar claim under
the First Amendment, which was already considered by this Court. If he had a viable cause of action
which resulted from Defendants’ refusal to allow him to represent Graewe, it would arise under the
First Amendment. To the extent Plaintiff intended to assert a claim for denial of substantive due
process, it is dismissed as duplicative of his First Amendment claims.
CONCLUSION
Accordingly, this action is dismissed under 28 U.S.C. § 1915(e). This 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/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
November 26, 2012
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