Trawick v. Kelly et al
Filing
4
Opinion and Order. For the reasons set forth herein, 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. Judge Christopher A. Boyko on 11/5/2012. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARQUET TRAWICK,
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Plaintiff,
v.
BENNY KELLY, et al.
Defendants.
CASE NO. 4:12 CV 1714
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.:
Pro se Plaintiff Marquet Trawick filed this action under 42 U.S.C. § 1983 against Trumbull
Correctional Institution (“TCI”) Warden Benny Kelly, TCI Warden’s Assistant Robin Ware, TCI
Institutional Inspector K. Fredericks, and Ohio Department of Rehabilitation and Correction
Assistant Chief Inspector Eugene Hunyadi. In the Complaint, Plaintiff alleges he was denied due
process in connection with a conduct rules infraction. He seeks monetary damages and reversal of
the conviction on the conduct charge.
I. BACKGROUND
Plaintiff includes very few factual allegations in his Complaint. He indicates he arrived at
TCI on January 17, 2012. He indicates he registered for black history and Christianity programs
that he believed were available to all inmates in the general population. When he arrived at one of
the programs, he was told “that he was bound by a ‘TCI Sanction Policy’ that deprived him of his
liberty to attend these programs alleging that he had violated some rule infraction.” (ECF No. 1 at
4.) Other sanctions were also imposed, including restrictions on electronic items, clothing
packages, food packages, visits, and telephone calls. He disputes that he violated rules and contends
he met the criteria for attending the programming. He claims he cannot be deemed a security threat.
II. LAW AND ANALYSIS
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to
dismiss an in forma pauperis 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); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). 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, 490 U.S. at 327. 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).
A pleading must contain a “short and plain statement of the claim showing that the pleader is
1
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. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997);
Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986); Harris
v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177, 1179 (6th Cir.
1985).
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entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (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. Bell Atl. Corp., 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. 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, the Court 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).
Due Process
As an initial matter, it is not clear whether Plaintiff was charged with a conduct violation
prior to attending the programming, or whether he was charged with a violation for attending the
programming. The Fourteenth Amendment provides that a state may not “deprive any person of
life, liberty, or property, without due process of law.” U.S. CONST . amend. XIV. In addition to
setting the procedural minimum for deprivations of life, liberty, or property, the Due Process
Clause bars “certain government actions regardless of the fairness of the procedures used to
implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It does not prohibit every
deprivation by the state of a person’s life, liberty or property. Harris v. City of Akron, 20 F.3d 1396,
1401 (6th Cir. 1994). Only those deprivations which are conducted without due process are subject
to suit under 42 U.S.C. § 1983. Id.
The Due Process Clause has a procedural component and a substantive one. The two
components are distinct from each other because each has different objectives, and each imposes
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different constitutional limitations on government power. A procedural due process limitation,
unlike its substantive counterpart, 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 -1353 (6th Cir. 1996). The goal is to minimize the risk of erroneous deprivation, to
assure fairness in the decision-making process, and to assure that the individual affected has a
participatory role in the process. Id. Procedural due process requires that an individual 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). Many procedural due process claims are grounded on violations
of state-created rights, or rights that do not enjoy constitutional standing. See Id. The rationale for
granting procedural protection to an interest that does not rise to the level of a fundamental right is
to prevent the arbitrary use of government power. Howard, 82 F.3d at 1349. Procedural due
process claims do not consider the egregiousness of the deprivation itself, but only question
whether the process accorded prior to the deprivation was constitutionally sufficient. Id. at 1350.
Although the existence of a protected liberty or property interest is the threshold determination, the
focus of this inquiry centers on the process provided, rather than on the nature of the right.
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
used. See Daniels v. Williams, 474 U.S. 327, 331 (1986). Substantive due process serves as a
vehicle to limit various aspects of potentially oppressive government action. Id. It serves as a check
on legislation that infringes on fundamental rights otherwise not explicitly protected by the Bill of
Rights; or as a check on official misconduct which infringes on a “fundamental right;” or as a
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limitation on official misconduct, which although not infringing on a fundamental right, is so
literally “shocking to the conscious,” as to rise to the level of a constitutional violation. Howard,
82 F.3d at 1349.
1. Procedural Due Process
Plaintiff claims he was sanctioned with restrictions on attending programing, receiving
packages, and electronic items for one year, and restricted visitation and telephone calls for 60 days.
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 question of what process is due is answered only if the inmate establishes a deprivation
of a constitutionally protected liberty or property interest. Wilkinson v. Austin, 545 U.S. 209, 221
(2005).
The Due Process Clause, standing alone, confers no liberty or property interest in freedom
from government action taken within the sentence imposed. Sandin, 515 U.S. at 480. “Discipline
by prison officials in response to a wide range of misconduct falls within the expected perimeters
of the sentence imposed by a court of law.” Id. at 485. “[T]he Constitution itself does not give rise
to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson, 545
U.S. at 221. A prison disciplinary action does not give rise to a protected liberty interest unless the
restrictions imposed constitute 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 the disciplinary action 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
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liberty or property interest will be found in the case. Sandin, 515 U.S. at 484. Where good time
credits are at stake, due process requires only that a prisoner receive: 1) written notice of the hearing
at least twenty-four hours in advance; 2) an opportunity, when consistent with institutional safety
and correctional goals, to call witnesses and present documentary evidence in his defense; and 3)
a written statement by the factfinder of the evidence relied on and the reason for the disciplinary
action. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Further, some evidence must exist to
support the disciplinary conviction. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56
(1985).
Plaintiff does not provide much information in his Complaint about the reasons the sanctions
were imposed, other than to indicate his “name and identity [will be] indefinitely televised as an
exhibitionist.” (ECF No. 1 at 4.) He does not suggest he was sent to segregation or that he received
a reduction in good time credits. Plaintiff has not alleged sufficient facts to suggest the Defendants
deprived him of a protected liberty or property interest.
2. Substantive Due Process
Plaintiff's substantive due process claim is also subject to dismissal. Due process claims of
this nature involve official acts which cause a deprivation of a substantive fundamental right.
Mertik v. Blalock, 983 F.2d 1353,1367 (6th Cir. 1993). In addition, under substantive due process,
courts have invalidated laws or actions of government officials that “shock the conscience.” See
United States v. Salerno, 481 U.S. 739, 746 (1987). These actions are unconstitutional regardless
of the procedural protections provided. Parate v. Isibor, 868 F.2d 821, 832 (6th Cir. 1989). A
citizen, however, does not suffer a constitutional deprivation every time he is subjected to some
form of harassment by a government agent. Id. at 833. The conduct asserted must be “so severe,
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so disproportionate to the need presented, and such an abuse of authority as to transcend the bounds
of ordinary tort law and establish a deprivation of constitutional rights.” Id.
Because Plaintiff does not allege facts to suggest he was deprived of a fundamental right not
otherwise specified in the Constitution, Plaintiff's substantive due process claim must be based, if
at all, on conduct alleged to be so severe that it shocks the conscience. Plaintiff provides very few
facts to shed light on the nature of the Defendant’s actions. He does not indicate how each of the
Defendants is involved or what actions each took in connection with the allegations in his
Complaint. There is no indication in the Complaint that the Defendants denied him substantive due
process.
III. CONCLUSION
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.2
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: November 5, 2012
2
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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