Aliane v. McKee et al

Filing 14

ORDER affirming and adopting 5 the Report and Recommendation; denying 13 Plaintiff's Motion for Recusal. Signed by Judge Michael H. Watson on 3/5/18. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Maiek Bouzld Alfane,
Plaintiff,
V.

Christine A. McKee, et al.,

Case No. 2:17-cv-1002

Judge Michaei H. Watson
Magistrate Judge Jolson

Defendants.
ORDER

MaIek Bouzld Aliane ("Plaintiff"), a prisoner proceeding pro se, brings this
Bivens action against Defendants Christine A. McKee ("McKee"), Alvis House

Operations Manager; Chris Paul ("Paul"), Residential Reentry Manager for the
Bureau of Prison ("BOP"); and Jeff George ("George"), BOP Disciplinary Hearing

Officer (collectively, "Defendants"). Compl., EOF No. 4. Plaintiff alleges
violations of his due process rights. On December 13, 2017, Magistrate Judge
Jolson, after conducting an initial screening of his Complaint pursuant to 28
U.S.C. § 1915(e), issued a Report and Recommendation ("R&R") recommending
dismissal of Plaintiffs action for failure to state a claim. R&R, ECF No. 5.

Plaintiff objects to the R&R's findings. ECF No. 10.
Federal Rule of Civil Procedure 72(b)(2) provides that "[wjithin 14 days

after being served with a copy of the recommended disposition, a party may
serve and file specific written objections to the proposed findings and
recommendations." Fed. R. Civ. P. 72(b)(2). "The district Judge must determine

de novo any part of the magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify the recommended
disposition: receive further evidence; or return the matter to the magistrate judge
with instructions." Fed. R. Civ. P. 72(b)(3). The Court conducted a de novo

review of the R&R and, for the following reasons, OVERRULES Plaintiffs
objections and AFFIRMS and ADOPTS the R&R.
This Order very briefly summarizes the relevant factual background, which
is more fully elaborated In the R&R. This action arises from actions taken during
Bureau of Prison ("BOP") disciplinary proceedings against Plaintiff commencing
in July of 2015. While Plaintiff was serving time at Alvis House for a prior crime,
he was arrested for the crime for which he is currently incarcerated. Nine days

after his arrest and booking into the Franklin County jail, McKee issued an
incident report charging Plaintiff with technical "escape" due to being arrested, in
violation of BOP Code 102.

On August 10, 2015, Plaintiff alleges he was served with the incident
report. The next day, the Center Discipline Committee ("CDC") recommended

that Plaintiff be found guilty of escape and sanctioned. Plaintiff alleges that
George approved that recommendation and sanctioned him with the removai of
forty-one good time credits. Plaintiff appealed the CDC recommendation. Upon

review, the North Central Reginal Director found several deficiencies in the
incident report and, on May 24,2016, remanded it to a Disciplinary Hearing
Officer ("DHO") for corrective action. Notwithstanding the remand, the incident
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report remained pending on June 17,2016, and, therefore, Piaintiff was piaced in
a special housing until upon his arrival at a federal correctional institution that

day. Piaintiff avers that he was housed in the special housing unit for twenty-five
days, until a different DHO reheard the incident report and expunged it.
The Magistrate Judge concluded these facts, as alleged in PiaintifTs
Complaint, failed to state a claim for a deprivation of Plaintiffs constitutional
rights. As the Magistrate Judge explained, under Sandin v. Conner, 515 U.S.

472 (1995), "whether a prisoner ha[s] been subjected to a due process violation
in the context of a prison disciplinary proceeding depends upon whether the
restraint 'imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life' or 'will inevitably affect the duration of his

sentence.'" R&R 6, EOF No. 5 (quoting Sandin, 515 U.S. at 487). According to
Sandin, "the due process clause does not 'create a liberty interest to be free from
administrative segregation.'" id. at 7 (quoting McCuiiough v. Fed. Bureau of

Prisons, No. 1:06-cv-563, 2010 WL 5136133, at *5 (E.D. Cai. Dec. 6, 2010)).
Moreover, if an inmate's disciplinary record is expunged, he has no cognizable
injury that gives rise to a viable due process claim based on procedural violations
leading to the expunged disciplinary infraction. See Muhammad v. United

States, No. 07-66-GFVT, 2009 WL 3161475, at *6 (E.D. Ky. Sept. 25, 2009).
in this case, then, the Magistrate Judge found that Plaintiffs placement in
the special housing unit during the pendency of disciplinary proceedings, and the
expungement of his incident report, had no implication on his due process rights.
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because they did not impose a significant hardship on Piaintiff that would
inevitably affect the duration of his sentence. Id. at 6-7.

Finally, Magistrate Judge Joison recommended dismissal of this action for
the additional reason that Defendants are ail immune from suit. Id. at 8 (citing
Aladlml v. Alvis House/Cope Ctr., et al., No. 3:10-cv-121, 2012 WL 726852, at

**3-5 n.2 (S.D. Ohio Mar. 6, 2012) for the proposition that federal offenders
serving time in a privately-operated halfway house have no implied right of action
against the halfway house under Blvens\ and citing Sanders v. Burton, No. 2:08-

cv-144, 2008 WL 5102525 at * 2 (W.D. Mich. Dec. 1, 2008) for the proposition
that hearing officers are entitled to absolute judicial immunity from suit for actions
taken in their capacity as hearing officers).

in PiaintifTs objection, he does not object to particular findings made by
Magistrate Judge Joison or argue that her conclusions were based on any error

of fact or law. See Fed. R. Civ. P. 72(b) (stating that a party must object to

specific findings in the R&R's proposed recommendations), instead, he
rehashes the factual allegations asserted in his Complaint and generally argues
that the circumstances of the disciplinary proceedings against him violated his

due process rights. See Obj., ECF No. 10. Specificaiiy, Piaintiff contends that, in
the BOP'S disciplinary proceedings against him, (1) he did not receive a written
notice of the charges against him at least twenty-four hours prior to proceedings,

(2) he was not permitted to call witnesses and present documentary evidence to

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counter the charges against him, and (3) there was no credible evidence
justifying the disciplinary action. Id. at PAGEID ## 49-50.
But Magistrate Judge Jolson considered these allegations and concluded
that Plaintiff failed to state a claim, because he failed to demonstrate any

deprivation of a liberty Interest triggering procedural due process concerns. As
Magistrate Judge Jolson explained. Plaintiffs placement In the special housing

unit during disciplinary proceedings did not Impose an "atypical and significant
hardship" on Plaintiff—Instead, It fell "within the range of confinement to be
normally expected" In prison life. R&R 6-7, ECF No. 5 (citing Florentino v.

Biershbach, 64 F. App'x 550, 552 (7th CIr. 2003) and other cases). Moreover,
she pointed out that Plaintiffs record was ultimately expunged. The outcome of
the disciplinary proceedings, then, had effect on the duration of his sentence.

Accordingly, the Magistrate Judge concluded that, under Sandin, Plaintiff
suffered no deprivation of a liberty Interest that would give rise to a procedural
due process claim. Id. at 7. Plaintiff does not object to that legal conclusion, and

the Undersigned finds It was correct. To the extent Plaintiff Is arguing on
objection that the alleged Irregularities In the disciplinary proceedings are '"an
atypical and significant deprivation' In [their] own right," Florentino, 64 F. App'x at
552, that argument has no merit. Plaintiffs procedural due process claim Is
contingent upon alleging a deprivation of a substantive right. Id. Because he

has not alleged a deprivation of any liberty Interest, he falls to state a claim.

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Given the Court's conclusion that Plaintiff fails to state a claim, it need not
address PlaintifTs contention that Defendants McKee and Paul are not entitled to

immunity.

For the foregoing reasons, the Court OVERRULES PlaintifTs objections,
AFFIRMS and ADOPTS the R&R, ECF No. 5, and DISMISSES this case.

Additionally, Plaintiffs February 28,2018, Motion for Recusal is DENIED. The
Clerk is DIRECTED to TERMINATE this case and enter FINAL JUDGMENT

against Plaintiff.

Finally, the Court does not anticipate any further filings in this case now
that it is closed. But should Plaintiff seek to make any additional filings in this
case or its related case (No. 2:17-cv-142), he is ORDERED to first obtain leave
of Court. The Clerk is therefore DIRECTED not to docket any further filing by
Plaintiff in either of these cases absent authorization from the Undersigned.
IT IS SO ORDERED.

IICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:1 7-gv-1002

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