Lee-Bryant #337291 v. Hall et al, No. 2:2008cv00137 - Document 10 (W.D. Mich. 2008)

Court Description: OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 5 ; signed by EDTN Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION LAVERE LEE-BRYANT #337291, Plaintiff, v. Case No. 2:08-cv-137 Honorable R. Allan Edgar B. HALL, et al., Defendants. ___________________________________/ OPINION AND ORDER APPROVING MAGISTRATE JUDGE S REPORT AND RECOMMENDATION The Court has reviewed the Report and Recommendation filed by the United States Magistrate Judge on July 15, 2008. The Report and Recommendation was duly served on the parties. The Court received objections from the Plaintiff. In accordance with 28 U.S.C. § 636(b)(1), the Court has performed de novo consideration of those portions of the Report and Recommendation to which objection has been made. The Court now finds the objections to be without merit. In his objections, Plaintiff states that the Magistrate Judge erred in finding that his claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff states that he is not attempting to challenge his underlying conviction, and that his misconduct conviction does not implicate the duration of his confinement. However, as the Supreme Court recently has stated, [t]hese cases, taken together, indicate that a state prisoner s § 1983 action is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief), no matter the target of the prisoner s suit (state conduct leading to conviction or internal prison proceedings) if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Thus, where a prisoner s claim of unfair procedures in a disciplinary hearing necessarily implies the invalidity of the deprivation of good-time credits, his claim is not cognizable under § 1983. Id.; see also Bailey v. McCoy, No. 98-1746, 1999 WL 777351, at *2 (6th Cir. Sept. 21, 1999) (collecting Sixth Circuit decisions applying Edwards to procedural due process challenges). See also Muhammad v. Close, 540 U.S. 749, 754-55 (2004) (holding that the Heck-Edwards bar applies to prison misconduct challenges only when good-time credits are implicated). In Muhammad, 540 U.S. at 754-55, the Supreme Court clarified that Edwards requires the favorable termination of a disciplinary proceeding before a civil rights action may be filed only in cases where the duration of the prisoner s sentence is affected. Johnson v. Coolman, 102 F. App x 460, 461 (6th Cir. 2004). In other words, Edwards still applies where a plaintiff has lost good-time credits as the result of the misconduct conviction. Under Michigan law, a prisoner loses good-time credits for the month of his major misconduct disciplinary conviction. See MICH . COMP. LAWS § 800.33. In addition, the warden may order forfeiture of previously accumulated good-time credits in cases. Id. Plaintiff does not assert that he did not forfeit good-time credits for the month of his conviction. Accordingly, Plaintiff s claim remains noncognizable under § 1983 because a ruling on the claim would, if established, necessarily imply the invalidity of his disciplinary conviction. See Shavers v. Stapleton, 102 F. App x 900, 901 (6th Cir. 2004). Under Michigan law, a prisoner may seek a rehearing of a decision made by the Hearings Division within thirty calendar days after a copy of the Major Misconduct Hearing Report is received. MICH . COMP. LAWS § 791.254; MICH . DEP T OF CORR. Policy Directive 03.03.105, ¶ DDD (effective Jan. 1, 2007). Upon denial of his motion for rehearing, a prisoner may file an application for leave to appeal in the state circuit court. See MICH . COMP. LAWS § 791.255(2); -2- Policy Directive 03.03.105, ¶ GGG (concerning appeal). If he is not successful, he may then seek to overturn the convictions by bringing a federal habeas corpus action.1 Accordingly, because Plaintiff has not shown that his misconduct conviction has been invalidated, his claim is not presently cognizable. He therefore fails to state a claim on which relief can be granted. See Morris v. Cason, 102 F. App x 902, 903 (6th Cir. 2004) (a claim barred by Heck is properly dismissed for failure to state a claim); Murray v. Evert, 84 F. App x 553, 555(6th Cir. 2003) (same); Harris v. Truesdell, 79 F. App x 756, 758-59 (6th Cir. 2003) (same). Plaintiff s remaining objections merely reiterate the allegations set forth in his complaint. For the reasons set forth in the report and recommendation, Plaintiff s complaint fails to state a claim. THEREFORE, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge is approved and adopted as the opinion of the court and plaintiff s action will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b); 42 U.S.C. § 1997e(c). This is a dismissal described by 28 U.S.C. § 1915(g). IT IS FURTHER ORDERED that an appeal of this action would not 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). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should plaintiff appeal this decision, the Court will assess the $255 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless plaintiff is 1 A misconduct conviction results in the loss of good-time credits, which is equivalent to a loss of a shortened prison sentence. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). A challenge to a shortened prison sentence is a challenge to the fact or duration of confinement that is properly brought as an action for habeas corpus relief. Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973). However, a prisoner must exhaust available state remedies before bringing a habeas corpus action, which would include appealing the conviction through the state courts. See 28 U.S.C. § 2254(b)(1). -3- 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 $455 appellate filing fee in one lump sum. Accordingly, should plaintiff seek to appeal this matter to the Sixth Circuit, the appeal would be frivolous and not taken in good faith. Dated: 10/16/08 /s/ R. Allan Edgar R. Allan Edgar United States District Judge -4-

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