Gurley #290528 v. Hatton et al, No. 1:2020cv00922 - Document 4 (W.D. Mich. 2020)
Court Description: OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
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Gurley &#035;290528 v. Hatton et al Doc. 4 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.90 Filed 11/04/20 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ JAMES DAVID SCOTT GURLEY, Plaintiff, v. Case No. 1:20-cv-922 Honorable Janet T. Neff J. HATTON et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim. Discussion I. Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events about which he complains, however, occurred at the Central Michigan Correctional Facility (STF) Dockets.Justia.com Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.91 Filed 11/04/20 Page 2 of 12 in St. Louis, Gratiot County, Michigan. Plaintiff sues Greivance Coordinator J. Hatton, Corrections Officer Unknown Voux, and Corrections Officer S. Stout. Plaintiff’s complaint consists of largely conclusory assertions against Defendants. Plaintiff alleges that Defendant Hatton violated his due process rights when he “never given [sic] him step 2 grievance[s] when his grievances [were] constantly denied to being untimely.” (ECF No. 1, PageID.3.) Defendant Voux retaliated against Plaintiff for taking his criminal case to trial when he said, “Are you fucking stupid having a jury trial with all of our friends, family and colle[agues] will be on jury trial.” (Id.) Plaintiff also claims that this violated his Eighth Amendment rights. Plaintiff alleges that Defendant Stout lied about finding contraband in Plaintiff’s right front pocket, despite the fact that the MDOC stopped issuing pants with front pockets over ten years ago. Plaintiff attaches a copy of the misconduct report written by Defendant Stout to his complaint, which states that he discovered a packet in Plaintiff’s front pocket that contained four small, peach colored strips that were later found to be suboxone. (ECF 1-2, PageID.45.) In the misconduct hearing report, Hearings Officer Cori Barkman noted that Defendant Stout mistakenly stated that the contraband was found in Plaintiff’s front pocket. (Id., PageID.46.) Hearings Officer Barkman noted that video footage showed Plaintiff take a paper package from his back pocket and hand it to Defendant Stout prior to the shakedown. As Defendant Stout shook the papers, he discovered the contraband. (Id.) Hearings Officer Barkman stated: I find that the misconduct report is clear, concise, and credible. As such, I find that the substance found was properly identified as Suboxone according to the documentation provided by healthcare. I find that the discrepancy in the misconduct (front pocket vs. back pocket) is not fatal to this misconduct charge. That is because the video clearly shows [Plaintiff] handing paper to [Corrections Officer] Stout from his back pocket and [Corrections Officer] Stout subsequently discovered the substance in the pile of papers that the was handed by [Plaintiff]. 2 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.92 Filed 11/04/20 Page 3 of 12 (Id.) Plaintiff also attaches a copy of a preliminary examination transcript, showing that the had been criminally charged with possession of suboxone. (ECF No. 1-1.) Plaintiff states that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments. Plaintiff also claims that Defendants violated MCL § 15.151, which requires state employees to take an oath of office. Plaintiff seeks damages. II. Failure to state a claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). 3 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.93 Filed 11/04/20 Page 4 of 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). III. Defendant Hatton Plaintiff claims that Defendant Hatton violated his due process rights when he refused to give Plaintiff step II grievance forms and denied Plaintiff’s grievances as untimely. Plaintiff has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 932411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process, Defendant Hatton’s conduct did not deprive him of due process. Nor was Petitioner’s right to petition government violated by Defendant Hatton’s failure to process or act on his grievances. The First Amendment “right to petition government 4 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.94 Filed 11/04/20 Page 5 of 12 does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen’s views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). Moreover, Defendant Hatton’s actions have not barred Plaintiff from seeking a remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to assert grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials’ while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415-16 (6th Cir. 2014) (citing N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been improperly prevented from filing a grievance, his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances, and he therefore cannot demonstrate the actual injury required for an access-to-the-courts claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for initiation of a civil rights action. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the interference of officials, the grievance process is not available, and exhaustion is not required); Kennedy v. Tallio, 20 F. App’x 469, 470 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim against Defendant Hatton. 5 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.95 Filed 11/04/20 Page 6 of 12 IV. Defendant Voux Plaintiff claims that Defendant Voux retaliated against Plaintiff for taking his criminal case to trial when he said that Plaintiff was stupid because the jury would consist of the friends and family of corrections officials. Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). As noted by Plaintiff, he has a constitutional right to a trial by jury on criminal charges. However, in Thaddeus-X, the Sixth Circuit recognized that some threats and deprivations are too minimal to constitute adverse action. Citing Bart v. Telford, 677 F.2d 622 (7th Cir. 1982), the Thaddeus-X court held that minor harassment is insufficient to constitute adverse action, because recognition of such a standard would “‘trivialize the First Amendment.’” Thaddeus 175 F.3d at 398-99 (citing Bart, 677 F.2d at 625). As noted above, Defendant Voux merely stated that he thought Plaintiff was stupid for going to trial. The Court concludes that this conduct is not sufficiently adverse to state a retaliation claim. Nor does Defendant Voux’s comment violate Plaintiff’s rights under the Eighth Amendment. Allegations of verbal harassment or threats by prison officials toward an inmate do not constitute punishment within the meaning of the Eighth Amendment. Ivey v. Wilson, 832 F.2d 6 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.96 Filed 11/04/20 Page 7 of 12 950, 955 (6th Cir.1987). Nor do allegations of verbal harassment rise to the level of unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Id. Even the occasional or sporadic use of racial slurs, although unprofessional and reprehensible, does not rise to a level of constitutional magnitude. See Torres v. Oakland Cty., 758 F.2d 147, 152 (6th Cir. 1985). Because Plaintiff’s allegations against Defendant Voux fail to implicate his rights under either the First or Eighth Amendment, Defendant Voux is properly dismissed. V. Defendant Stout Plaintiff appears to be claiming that Defendant Stout violated his due process rights when he lied about finding contraband in Plaintiff’s right front pocket, which led to a misconduct conviction and criminal charges. The Fourteenth Amendment protects an individual from deprivation of life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due process violation, a plaintiff must show that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). The Supreme Court long has held that the Due Process Clause does not protect every change in the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard for determining when a state-created right creates a federally cognizable liberty interest protected by the Due Process Clause. According to that Court, a prisoner is entitled to the protections of due process only when the sanction “will inevitably affect the duration of his sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate in 7 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.97 Filed 11/04/20 Page 8 of 12 relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Plaintiff’s major misconduct charge and conviction affected a number of Plaintiff’s interests, but none of them fall into either of the categories identified in Sandin as protected by due process, i.e., an inevitable effect on the duration of Plaintiff’s sentence or an atypical and significant hardship. As to the first category, Plaintiff has not alleged a deprivation that will inevitably affect the duration of his sentence. A prisoner like Plaintiff, who is serving an indeterminate sentence for an offense committed after 2000, can accumulate “disciplinary time” for a major misconduct conviction. See Mich. Comp. Laws § 800.34. Disciplinary time is considered by the Michigan Parole Board when it determines whether to grant parole. Id. § 800.34(2). It does not necessarily affect the length of a prisoner’s sentence because it is “simply a record that will be presented to the parole board to aid its [parole] determination.” Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011). As to the second category, Plaintiff has not alleged that he suffered a “significant and atypical deprivation.” Plaintiff notes that he was placed in segregation for 56 days and put on room restriction for 68 days. Confinement in administrative segregation “is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468 (1983). Thus, it is considered atypical and significant only in “extreme circumstances.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will consider the nature and duration of a stay in segregation to determine whether it imposes an “atypical and significant hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008). 8 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.98 Filed 11/04/20 Page 9 of 12 In Sandin, the Supreme Court concluded that the segregation at issue in that case (disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin, 515 U.S. at 484. Similarly, the Sixth Circuit has held that placement in administrative segregation for two months does not require the protections of due process. See Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (61 days in segregation is not atypical and significant). It has also held, in specific circumstances, that confinement in segregation for a much longer period of time does not implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (two years of segregation while the inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997) (one year of segregation following convictions for possession of illegal contraband and assault, including a 117-day delay in reclassification due to prison crowding). Generally, only periods of segregation lasting for several years or more have been found to be atypical and significant. See, e.g., Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (eight years of segregation implicates a liberty interest); Harden-Bey, 524 F.3d at 795 (remanding to the district court to consider whether the plaintiff's allegedly “indefinite” period of segregation, i.e., three years without an explanation from prison officials, implicates a liberty interest). Plaintiff has failed to allege any facts showing that he was subjected to an atypical and significant hardship in relation to the ordinary incidents or prison life. Thus, he does not state a due process claim. Furthermore, even if Plaintiff had alleged the loss of a protected liberty interest, he would not state a due process claim because he fails to allege facts showing that he did not receive all the process due to him. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that prison disciplinary proceedings implicating a liberty interest must provide the following minimum process: (i) at least 24 hours of advance notice of the charges, (ii) the right to call 9 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.99 Filed 11/04/20 Page 10 of 12 witnesses and to present evidence in the inmate’s defense, (iii) an impartial tribunal, and (iv) a written statement of evidence relied on by the disciplinary board and the reasons for the disciplinary action. Id. at 563-69. Plaintiff attaches a copy of both the misconduct report and the hearing report related to this misconduct conviction. Both documents reflect that Plaintiff received the required protections specified in Wolff. Unlike the misconduct conviction, Plaintiff does have a liberty interest with regard to the criminal charges filed against him because a criminal conviction could affect the duration of his prison sentence. However, Plaintiff does not state a due process claim regarding the criminal case against him because he fails to allege facts showing that he did not receive all the process due to him. In fact, according Plaintiff’s record on the MDOC Offender Tracking Information System (OTIS), Plaintiff pleaded guilty to being a prisoner in possession of contraband and was sentenced to a term of 1 year 2 months to 5 years on http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=290528. March 5, 2020. Therefore, Plaintiff’s claims against Defendant Stout are properly dismissed. VI. State law Claims under § 1983 can only be brought for “deprivation of rights secured by the constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants violated state law therefore fails to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks to invoke this Court’s supplemental jurisdiction over a state-law claim, the Court declines to exercise jurisdiction. In determining whether to retain supplemental jurisdiction, “[a] district court should consider the interests of judicial economy and the avoidance of multiplicity of litigation and balance those interests against needlessly deciding state law 10 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.100 Filed 11/04/20 Page 11 of 12 issues.” Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). Ordinarily, where a district court has exercised jurisdiction over a state-law claim solely by virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial, the court will dismiss the remaining state-law claims. Id. Dismissal, however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). Here, the balance of the relevant considerations weighs against the continued exercise of supplemental jurisdiction. Accordingly, Plaintiff’s state-law claim will be dismissed without prejudice. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum. This is a dismissal as described by 28 U.S.C. § 1915(g). 11 Case 1:20-cv-00922-JTN-RSK ECF No. 4, PageID.101 Filed 11/04/20 Page 12 of 12 A judgment consistent with this opinion will be entered. Dated: November 4, 2020 /s/ Janet T. Neff Janet T. Neff United States District Judge 12
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