Hughes v. Parker et al

Filing 46

REPORT AND RECOMMENDATION re 33 First MOTION to Dismiss filed by Jeff Butler. Signed by Magistrate Judge Jeffery S. Frensley on 1/11/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

CORDARO HUGHES,
NO. 416857
Plaintiff,
v.
TONY PARKER, et al.
Defendants.

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Civil Action No. 1:17-cv-0009
Judge Crenshaw
Magistrate Judge Frensley

REPORT AND RECOMMENDATION
Now pending before the court is Defendant’s Motion to Dismiss (Docket No. 33) and
supporting memorandum of law (Docket No. 34) to which the Plaintiff has filed a response in
opposition (Docket No. 36). For the reasons stated herein, the undersigned recommends that the
Defendant’s Motion to Dismiss be GRANTED.
BACKGROUND
Plaintiff, Cordaro Hughes, is an inmate in the custody of the Tennessee Department of
Correction who brought this action pro se under 42 U. S. C. § 1983. Following the Court’s initial
review pursuant to the Prison Litigation Reform Act (“PLRA”), Plaintiff was allowed to proceed
on his claim under § 1983 against Jeffery Butler for race based discrimination under the
Fourteenth Amendment’s equal protection clause.
The Defendant, Mr. Butler, is the Assistant Warden at the Turney Center Industrial
Complex (“TCIX”), the institution where Mr. Hughes was housed during all times relevant to
this action. The complaint alleges that while at TCIX, Plaintiff was placed in segregation for
allegedly participating in gang activities, possessing a deadly weapon, and assaulting another
inmate. After being found guilty in a disciplinary hearing, Plaintiff lost good time sentence

credits. Docket No. 1, p. 5. Mr. Hughes contends that he was denied a fair hearing by the TCIX
administration and disciplinary board. He further alleges that he was racially profiled and the
victim of discrimination as African American. Id. Specifically, the complaint alleges that
Assistant Warden Jeff Butler told the Plaintiff: “you’re a nigger, [and] we can’t let you win here,
we play a dirty game down here.” Id.
The Court allowed this claim to survive initial review on these allegations holding: “At
this point in the proceedings, the Plaintiff has stated an arguable claim against Defendant Butler
in his individual capacity for race based discrimination under the Fourteenth Amendment’s equal
protection clause.” Docket No. 8, p. 7. (citations omitted)
The Defendant has now filed a Motion to Dismiss alleging that the Plaintiff has failed to
state a cognizable § 1983 claim pursuant to Heck v. Humphrey, 512 U. S. 477 (1994) and
Edwards v. Balisok, 520 U. S. 641 (1997) and failed to allege sufficient personal involvement of
the Defendant. Docket No. 33. Specifically, the Defendant asserts that under established
Supreme Court precedent, a finding in Plaintiff’s favor would necessarily apply the invalidity of
the deprivation of his good time credits thereby indirectly effecting the length or fact of his
confinement, a claim that is not cognizable under § 1983. Docket No. 34, pp. 2-3. The Defendant
further contends the Plaintiff “has failed to allege any specific or general facts as to how
Defendant caused, influenced, or was involved in an allegedly unfair disciplinary hearing.” Id. at
p. 4. Defendant asserts that because Plaintiff has not alleged or established any personal
involvement by the Defendant in the proceedings about which the Plaintiff complains, he has
failed to state a claim upon which relief can be granted. Id.
The

Plaintiff responds in opposition asserting that the “administrative policies and

procedures, disciplinary hearing summary report show that the Defendant was designated by the

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deputy warden to investigate this matter which means he is personally involved in everything.”
Docket No. 36, p. 1. He further contends that the Defendant does not address his assertion that
“when I brought this matter to his attention after gettin (sic) found guilty, Defendant never
denied the fact that he racially profiled me, the Defendant also never denied the fact that I was
never advised of my rights and served a write up properly.” Id. He asserts that he brought this
issue to the Defendant’s attention so that the Defendant could conduct a proper investigation and
reasserts his allegation about the statement that the Defendant made to him that the irregularities
and the procedures used in his hearing were motivated by race. Id. Plaintiff again reiterates the
alleged deficiencies in his hearing as well. Id. at p. 2.
ANALYSIS
When ruling on a defendant’s motion to dismiss, the court must “construe the complaint
liberally in the plaintiff’s favor and accept as true all factual allegations and permissible
inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). The court
should allow “a well-pleaded complaint [to] proceed even if it strikes a savvy judge that actual
proof of those facts is improbable.”

Twombly, 550 U.S. at 556.

However, a “plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions.” Id. at 555. “‘[A] legal conclusion couched as a factual allegation’ need not be
accepted as true on a motion to dismiss,” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722
(6th Cir. 2010) (citation omitted), and mere recitation of the elements of a cause of action “or an
“unadorned, the-defendant-unlawfully-harmed-me accusation” will not do, Iqbal, 556 U.S. at
678; Twombly, 550 U.S. at 555. While the court must accept “as true all non-conclusory
allegations in the complaint,” Delay v. Rosenthal Collins Grp., LLC, 585 F. 3d 1003, 1005 (6th
Cir. 2009), it does not have to accept unsupported legal conclusions, Iqbal, 556 U.S. at 678.

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“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011) (internal quotation marks and citation omitted). Pro se litigants, however, are not
exempt from the requirements of Federal Rules of Civil Procedure. Wells v. Brown, 891 F. 2d
591, 594 (6th Cir. 1989). The Court is not required to create a claim for a plaintiff. Clark v.
Nat’l Travelers Life. Ins. Co., 518 F. 2d 1167, 1169 (6th Cir. 1975); see also Brown v.
Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“a court cannot create a claim which [a
plaintiff] has not spelled out in his pleading”) (internal quotation marks and citation omitted);
Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of
complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, “[n]either this court nor the district
court is required to create Payne’s claim for her”). To demand otherwise would require the
“courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also
transform the district court from its legitimate advisory role to the improper role of an advocate
seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City
of Hampton, 775 F. 2d 1274, 1278 (4th Cir. 1985).
Not every allegation of constitutional violations in prisoner proceedings is the proper
subject for an action under § 1983. In a series of cases beginning with Preiser v. Rodriguez, 411
U. S. 475, 3 S. Ct. 1827, 36 L. Ed 2d 439 (1973), the Supreme Court has considered the interplay
between 42 U. S. C. § 1983 and the federal habeas corpus statute, 28 U. S. C. § 2254. In Preiser,
state prisoners who had been deprived of good-conduct-time credits by the New York State
Department of Correction Services as a result of disciplinary proceedings brought a § 1983
action to compel the restoration of the credits which would have led to their immediate release
but did not seek compensatory damages for the loss of the credits. 411 U. S. at 476, 494. The

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Supreme Court held that: “when a state prisoner, though asserting jurisdiction under the Civil
Rights Act, is challenging the very fact or duration of his physical imprisonment, and the relief
he seeks is a determination that he is entitled to immediate release or speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.” Id. at 500.
Years later in Heck v. Humphries, 512 U. S. 477, 114 S. Ct. 2364, 129 L. Ed 2d 383
(1994), the Court considered a question related to the one presented in Preiser, whether a
prisoner could challenge the constitutionality of his conviction in a suit for damages only under §
1983, a type of relief not available under Habeas proceedings. The court rejected that challenge.
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of habeas corpus, 28
U. S. C. § 2254. A claim for damages bearing that relationship to a conviction or a
sentence that has not been so invalidated is not cognizable under § 1983.
512 U. S. at 486-87 (Footnote omitted).
The favorable-termination rule set forth in Heck preserves the rule that claims, which if
successful, would imply the invalidity of the conviction or sentence, must be brought by Petition
for writ of Habeas Corpus. Muhammad v. Close, 540 U. S. 749, 750-51, 124 S. Ct. 1303, 158 L.
Ed 2d 32 (2004). The Supreme Court extended the Heck favorable termination rule to prison
disciplinary proceedings in Edwards v. Balisok, 520 U. S. 641, 648 (1997). When a prisoner
challenges the legality or duration of his custody or raises a constitutional challenges which
could entitle him to an immediate or earlier release his sole federal remedy is a Writ of Habeas
Corpus Id. at 648. The Balisok court “reemphasize[d] that . . . a claim either is cognizable under
§1983 and should immediately go forward, or is not cognizable and should be dismissed.” 520
U. S. at 649.
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Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment
from discrimination based on race, religion, or membership in a protected class subject to
restrictions and limitations necessitated by legitimate penal interest. See Wolffe v. McDonnell,
418 U. S. 539, 556 (1974); Bell v. Wolfish, 441 U. S. 520, 545 (1979). The Equal Protection
Clause requires that all persons similarly situated should be treated alike. City of Cleburne, Texas
v. Cleburne Living Center, 473 U. S. 432, 439 (1985). Violations of equal protection are shown
when a respondent intentionally discriminated against petitioner based on membership in a
protected class. Jones v. Wray, 279 F. 3d 944, 946-47 (11th Cir. 2001), or when a respondent
intentionally treated a member of an identifiable class differently from other similarly situated
individuals without a rational basis, or rational relationship to a legitimate stated purpose, for the
difference in treatment. Village of Willow Brook v. Olech, 528 U. S. 562, 564 (2000).
In Balisok, the plaintiff elected not to seek the restoration of good conduct credits; rather,
Balisok sought declaratory relief and monetary damages under § 1983 based upon the alleged
denial due process. Balisok alleged that the hearing officer had concealed exculpatory evidence
and denied him a defense by refusing to question his witness and, also failed to adequately
support the disciplinary decision. The court found in Balisok’s situation, the nature of the due
process violations – an impartial hearing officer and denial of a defense - necessarily implied the
invalidity of the disciplinary conviction (and by implication any subsequent affirmation of that
decision). See, Id. at 646-647.
In the instant case, the Plaintiff seeks both the restoration of his good time sentence
credits as well as monetary damages. It is likewise worth noting that Plaintiff does not allege that
Defendant Butler was a decision maker with regard to the disciplinary board’s action. It appears
the statement allegedly made by Defendant Butler was made following the board’s decision

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when Plaintiff complained to him about that action. Thus, Plaintiff makes no allegation and
provides no evidence that Defendant Butler participated in the decision at issue in this case.
Further, plaintiff makes no allegations that any others of the disciplinary board who actually did
participate in the decision expressed the same or similar views.
Here Plaintiff alleges that the findings against him and deprivation of his good time
credits were based upon race discrimination in violation of the Equal Protection Clause. He seeks
reinstatement of that time as well as monetary damages. Based upon the Preiser/Heck/Balisok
line of cases it appears that this claim is premature until such time the underlying disciplinary
conviction is otherwise invalidated through state administrative or judicial procedures or federal
habeas corpus action. For these reasons, the undersigned recommends that the Defendant’s
Motions to Dismiss (Docket No. 33) be GRANTED and this action be dismissed without
prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days
from receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have ten (10)
days from receipt of any objections filed in this Report in which to file any response to said
objections. Failure to file specific objections within ten (10) days of receipt of this Report and
Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v.
Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986).

JEFFERY S. FRENSLEY
U. S. Magistrate Judge

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