Adams #268663 v. Unknown Party #1 et al, No. 2:2023cv00145 - Document 12 (W.D. Mich. 2023)

Court Description: OPINION; signed by Magistrate Judge Maarten Vermaat (cam)

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Adams &#035;268663 v. Unknown Party &#035;1 et al Doc. 12 Case 2:23-cv-00145-MV ECF No. 12, PageID.65 Filed 09/25/23 Page 1 of 19 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______ TERRY LAMONT ADAMS, Plaintiff, v. Case No. 2:23-cv-145 Honorable Maarten Vermaat UNKNOWN PARTY #1 et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis in a separate order. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 9.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendant(s) is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding Dockets.Justia.com Case 2:23-cv-00145-MV ECF No. 12, PageID.66 Filed 09/25/23 Page 2 of 19 tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way that they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a 2 Case 2:23-cv-00145-MV ECF No. 12, PageID.67 Filed 09/25/23 Page 3 of 19 consent from the defendants[; h]owever, because they had not been served, they were not parties to th[e] action at the time the magistrate entered judgment.”).1 Under the 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. The Court will also deny Plaintiff’s motion to appoint counsel (ECF No. 3). Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Inspector Unknown Pawley. He also sues four unknown correctional officers, three of whom he refers to as unit officers and the other of whom he refers to as the officer assigned to watch the control center video surveillance system at the time in question. (ECF No. 1, PageID.4.) Plaintiff indicates that he is But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 1 3 Case 2:23-cv-00145-MV ECF No. 12, PageID.68 Filed 09/25/23 Page 4 of 19 suing the unknown officers in their official capacities only, and that he is suing Defendant Pawley in his official and personal capacities. (Id.) Plaintiff alleges that on January 4, 2023, the three unknown unit officers gave inmate Crutcher-Bey an order to go to Plaintiff’s cell and assault him. (Id., PageID.5.) Subsequently, Plaintiff asked the second shift officers for the names of the officers and how to spell the names. (Id.) Plaintiff was told, “Why would I give you [their] names, so you could file a grievance?” (Id.) Plaintiff was then told he would receive a false misconduct ticket and be placed in segregation if he asked for the names one more time. (Id.) Plaintiff also alleges that inmate Crutcher-Bey told Plaintiff that he had to follow the officers’ order to assault Plaintiff so that he could be transferred to a Level II facility. (Id.) Plaintiff says that on January 10, 2023, Defendant Pawley issued Plaintiff a Class I misconduct ticket, charging Plaintiff with fighting. (Id.) Plaintiff alleges that this ticket was false because he was never fighting. (Id.) Plaintiff contends that the officer assigned to the control center was able to clearly see what happened, but “covered up the wrongdoing” after Defendants “got word that [Plaintiff] was trying to file a grievance on them.” (Id.) Plaintiff alleges further that he did not receive medical treatment until January 10, 2023, when he was treated by non-party Nurse Buchanan. (Id., PageID.6.) Plaintiff claims that he “has [injuries] that persist to this day[, namely,] eye sight and back pain from being beaten and kicked.” (Id.) Plaintiff has attached copies of his grievances and the documents from his misconduct proceedings to his complaint. Plaintiff appeared before non-party Hearing Officer O’Brien on January 18, 2023. (ECF No. 1-1, PageID.21.) O’Brien found Plaintiff guilty of the class I 4 Case 2:23-cv-00145-MV ECF No. 12, PageID.69 Filed 09/25/23 Page 5 of 19 misconduct charging him with fighting. (Id.) He sanctioned Plaintiff to 30 days’ toplock2 and 30 days’ loss of privileges (LOP). Based on the foregoing, Plaintiff contends that he is asserting Eighth and Fourteenth Amendment excessive force/failure to protect claims. (ECF No. 1, PageID.6.) The Court also construes Plaintiff’s complaint to assert a First Amendment retaliation claim, as well as a Fourteenth Amendment due process claim, against Defendant Pawley. Plaintiff seeks a declaratory judgment, as well as compensatory and punitive damages. (Id., PageID.7.) Motion to Appoint Counsel Plaintiff has filed a motion to appoint counsel to represent him in this matter. (ECF No. 3.) Plaintiff contends that counsel should be appointed because the issues involved are complex, and obtaining discovery is beyond his capabilities. (Id., PageID.34.) Plaintiff also indicates that he has limited access to the law library. (Id.) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604–05 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604–05; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these factors and determines that, at this stage of the case, the assistance of counsel does not appear “Toplock” is a restriction of the prisoner to his own cell, room, or bunk and bunk area. See MDOC Policy Directive 03.03.105, ¶¶ OOO–QQQ (eff. Apr. 18, 2022). 2 5 Case 2:23-cv-00145-MV ECF No. 12, PageID.70 Filed 09/25/23 Page 6 of 19 necessary to the proper presentation of Plaintiff’s position. Plaintiff’s motion to appoint counsel (ECF No. 3) will, therefore, be denied. 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. Id.; 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.” Id. 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.” Id. 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)(ii)). 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 6 Case 2:23-cv-00145-MV ECF No. 12, PageID.71 Filed 09/25/23 Page 7 of 19 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). A. Official Capacity Claims As noted above, Plaintiff indicates that he is suing the unknown officers in their official capacities only, and that he is suing Defendant Pawley in his official and personal capacities. (ECF No. 1, PageID.4.) A suit against an individual in his or her official capacity is equivalent to a suit brought against the governmental entity: in this case, the MDOC. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). The states and their departments are immune under the Eleventh Amendment from suit in the federal courts unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous opinions, the United States Court of Appeals for the Sixth Circuit has specifically held that the MDOC is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653–54 (6th Cir. 2010). Thus, official capacity defendants are also immune from monetary damages. See Will, 491 U.S. at 71; Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998). The Court, therefore, will dismiss Plaintiff’s claims for monetary damages against Defendants in their official capacities. 7 Case 2:23-cv-00145-MV ECF No. 12, PageID.72 Filed 09/25/23 Page 8 of 19 Although damages claims against an official capacity defendant are properly dismissed on grounds of immunity, an official capacity action seeking injunctive or declaratory relief may constitute an exception to sovereign immunity. See Ex Parte Young, 209 U.S. 123, 159–60 (1908) (holding that the Eleventh Amendment immunity does not bar prospective injunctive relief against a state official). However, the Supreme Court has cautioned that, “Ex parte Young can only be used to avoid a state’s sovereign immunity when a ‘complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Ladd v. Marchbanks, 971 F.3d 574, 581 (6th Cir. 2020) (quoting Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). Here, Plaintiff seeks relief for past harm that occurred in January of 2023; he does not allege that any named Defendant is engaged in any course of conduct that can be described as ongoing. Past exposure to an isolated incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to the illegal conduct again. See, e.g., id.; Alvarez v. City of Chicago, 649 F. Supp. 43 (N.D. Ill. 1986); Bruscino v. Carlson, 654 F. Supp. 609, 614, 618 (S.D. Ill. 1987), aff’d, 854 F.2d 162 (7th Cir. 1988); O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). Therefore, Plaintiff’s claims for declaratory relief against Defendants in their official capacities will be dismissed. As noted above, Plaintiff has sued the unknown officers in their official capacities only. The dismissal of Plaintiff’s official capacity claims therefore compels the dismissal of the unknown officers as Defendants and leaves only Plaintiff’s personal capacity claims against Defendant Pawley to be considered below. 8 Case 2:23-cv-00145-MV ECF No. 12, PageID.73 Filed 09/25/23 Page 9 of 19 B. Personal Capacity Claims Against Defendant Pawley 1. First Amendment Retaliation The Court has construed Plaintiff’s complaint to assert a First Amendment retaliation claim against Defendant Pawley premised upon the issuance of the alleged false misconduct ticket. Plaintiff alleges he received the misconduct ticket after “all [five] unprofessional URF employee[s] [presumably referring to Defendants] got word that [Plaintiff] was trying to file a grievance on them.” (ECF No. 1, PageID.5.) 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 three elements: (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 show 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)). With respect to the first element of a First Amendment retaliation claim, an inmate has a right to file “non-frivolous” grievances against prison officials on his own behalf, whether written or oral. Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 298–99 (3d Cir. 2016) (“[The prisoner’s] oral grievance to [the prison officer] regarding the anti-Muslim harassment he endured at work constitutes protected activity under the First Amendment.”); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (“[W]e decline to hold that legitimate complaints lose their protected status simply because they are spoken.”); see also Pasley v. Conerly, 345 F. App’x 981, 984–85 (6th Cir. 2009) (finding that a prisoner engaged in protected 9 Case 2:23-cv-00145-MV ECF No. 12, PageID.74 Filed 09/25/23 Page 10 of 19 conduct by threatening to file a grievance). Here, Plaintiff alleges that he orally stated his intent to file a grievance concerning the incident that occurred on January 4, 2023. Thus, at this stage of the proceedings, Plaintiff has sufficiently alleged that he engaged in protected conduct for purposes of his First Amendment claim. To establish the second element of a retaliation claim, a prisoner-plaintiff must show adverse action by a prison official sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Thaddeus-X, 175 F.3d at 396. The adverseness inquiry is an objective one and does not depend on how a particular plaintiff reacted. The relevant question is whether the defendant’s conduct is “capable of deterring a person of ordinary firmness”; the plaintiff need not show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002). Here, the issuance of the Class I misconduct ticket, and the resulting conviction and sanctions, can be considered adverse action. See Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007); see also Hill, 630 F.3d at 474 (holding that “actions that result in more restrictions and fewer privileges for prisoners are considered adverse”). Plaintiff must also allege facts to support an inference that the alleged adverse action was motivated by the protected conduct. Plaintiff, however, merely alleges the ultimate fact of retaliation with respect to Defendant Pawley. Plaintiff vaguely contends that Defendant Pawley issued the misconduct ticket because Plaintiff stated his intent to file a grievance. Plaintiff, however, has alleged no facts from which the Court could infer that Defendant Pawley was even aware of Plaintiff’s oral statement of intent and issued him the misconduct ticket because of that statement. Instead, Plaintiff’s exhibits suggest that Defendant Pawley issued the misconduct to Plaintiff after watching video surveillance footage and because inmate Crutcher-Bey admitted to fighting with Plaintiff. (ECF No. 1-1, PageID.21–22.) Under these circumstances, a vague 10 Case 2:23-cv-00145-MV ECF No. 12, PageID.75 Filed 09/25/23 Page 11 of 19 suggestion of temporal proximity alone is insufficient to show a retaliatory motive. See Coleman v. Bowerman, 474 F. App’x 435, 437 (6th Cir. 2012) (holding that temporal proximity to the filing of a grievance is insufficient because any adverse action “would likely be in ‘close temporal proximity’ to one of [the plaintiff’s] many grievances or grievance interviews”); cf. Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004) (noting that “[c]onclusory allegations of temporal proximity are not sufficient to show a retaliatory motive”). Such “conclusory allegations of retaliatory motive ‘unsupported by material facts’” do not state a claim under § 1983. Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (citation omitted); see Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (holding that in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for trial” (internal quotation marks omitted)); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not enough to establish retaliation claims [that will survive § 1915A screening].” (citing CrawfordEl v. Britton, 523 U.S. 574, 588 (1998))). Moreover, the Court cannot accept Plaintiff’s allegations that the misconduct was false as true. Hearing Officer O’Brien rejected Plaintiff’s assertion that he and inmate Crutcher-Bey were talking because Crutcher-Bey admitted to fighting Plaintiff. (ECF No. 1-1, PageID.21.) Hearing Officer O’Brien also noted that if Plaintiff and Crutcher-Bey had just been talking, “Crutcher-Bey would not have left all disheveled and [Plaintiff] would not have left to clean up his face right after.” (Id.) A prisoner’s claim that he was falsely accused of a major misconduct is barred where there has been a finding of guilt. See Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013) (holding that a factual finding in a major misconduct proceeding has preclusive effect and is not subject to 11 Case 2:23-cv-00145-MV ECF No. 12, PageID.76 Filed 09/25/23 Page 12 of 19 challenge in a § 1983 action). However, as the Sixth Circuit subsequently qualified in Roberson v. Torres, 770 F.3d 398 (6th Cir. 2014), not every factual finding is entitled to preclusive effect. Instead, the question of preclusion cannot be resolved categorically, as it turns on casespecific factual questions such as what issues were actually litigated and decided, and whether the party to be precluded had sufficient incentives to litigate those issues and a full and fair opportunity to do so—not just in theory, but in practice. [Peterson, 714 F.3d] at 916–17. It likewise turns on the court’s “sense of justice and equity,” Blonder-Tongue Labs., v. Univ. of Ill. Found., 402 U.S. 313, 334 (1971), which may require a case-by-case analysis of surrounding circumstances. Roberson, 770 F.3d at 404–05. In Maben v. Thelen, the Sixth Circuit further clarified the limitations of the preclusion doctrine, as follows: To determine whether we must give preclusive effect to “factfinding from Michigan prison hearings,” we look to four requirements, all of which must be met: (1) the state agency “act[ed] in a ‘judicial capacity’”; (2) the hearing officer “resolved a disputed issue of fact that was properly before it”; (3) the prisoner “had an adequate opportunity to litigate the factual dispute”; and, (4) if these other three requirements are met, we must “give the agency’s finding of fact the same preclusive effect it would be given in state courts.” Peterson v. Johnson, 714 F.3d 905, 911–13 (6th Cir. 2013) (internal citation and quotation marks omitted). In Peterson, the Court considered, as a matter of first impression, whether a hearing officer’s factual determination at a Michigan major misconduct hearing has preclusive effect in litigation brought by a prisoner under § 1983. Id. at 908, 911. The Court concluded that, because all four requirements were met, the “hearing officer’s factual finding that [the prisoner] was the one who grabbed [the officer’s] hand precludes a contrary finding in federal court.” Id. at 917. In Roberson v. Torres, the Court considered the same issue, and identified the four requirements listed above. 770 F.3d 398, 403–04 (6th Cir. 2014). The Court said that Peterson does not mean that “any factual findings by a hearing officer in a major-misconduct hearing in a Michigan prison are to be accorded preclusive effect.” Id. at 404. “Peterson is not a blanket blessing on every factual finding in a major-misconduct hearing.” Id. Indeed, the question of preclusion cannot be resolved categorically, as it turns on case-specific factual questions such as what issues were actually litigated and decided, and whether the party to be precluded had sufficient incentives to litigate those issues and a full and fair opportunity to do so— not just in theory, but in practice. It likewise turns on the court’s sense of 12 Case 2:23-cv-00145-MV ECF No. 12, PageID.77 Filed 09/25/23 Page 13 of 19 justice and equity, which may require a case-by-case analysis of surrounding circumstances. Id. at 404–05 (internal citations and quotation marks omitted). The Court declined to decide the preclusion question, and remanded the case to the district court to consider the argument for the first time. Id. at 405. The Court instructed the district court to “give particular attention to the fairness and accuracy of the factual findings made by the major-misconduct hearing officer.” Id. The Court advised that “[n]umerous inquiries may be relevant to the district court’s analysis,” like “why the hearing officer refused to review the alleged video of the incident, whether the hearing officer provided a sufficient and reasonable basis for her factual findings, and whether the testimony of other witnesses corroborated the accounts provided by either [the prisoner] or [the officer].” Id. at 405. Maben, 887 F. 3d at 259. In the instant case, Plaintiff’s major misconduct hearing was conducted by Hearing Officer O’Brien, who was acting in a judicial capacity. Plaintiff expressly defended against the fighting charge by asserting that he and Crutcher-Bey had just been talking. Hearing Officer O’Brien rejected Plaintiff’s defense based upon Crutcher-Bey’s admission and the fact that Crutcher-Bey was disheveled, and Plaintiff needed to clean his face. Plaintiff had ample opportunity to litigate the issue, and exercised that opportunity. Precluding Plaintiff from relitigating the same disputed facts now comports with the Court's “sense of justice and equity.” As a consequence, the elements of the Peterson/Roberson/Maben test are met. The decision by Hearing Officer O’Brien therefore precludes Plaintiff’s claim that Defendant Pawley issued the misconduct ticket in retaliation for Plaintiff’s protected conduct. Accordingly, for all of the reasons set forth above, Plaintiff fails to state a First Amendment retaliation claim against Defendant Pawley premised upon the retaliatory act of writing an allegedly false misconduct report. 13 Case 2:23-cv-00145-MV ECF No. 12, PageID.78 Filed 09/25/23 Page 14 of 19 2. Eighth and Fourteenth Amendment Excessive Force/Failure to Protect Claims Plaintiff appears to suggest that Defendant Pawley violated his Eighth and Fourteenth Amendment rights by participating in a “cover-up” of the use of force. (ECF No. 1, PageID.5–6.) It appears that Plaintiff seeks to hold Defendant Pawley liable for the use of force, or for failing to intervene following the incident. As an initial matter, Plaintiff cannot maintain a Fourteenth Amendment claim premised upon such against Defendant Pawley because the Fourteenth Amendment applies to excessive force claims brought by pretrial detainees, not convicted inmates such as Plaintiff. See Kingsley v. Hendrickson, 576 U.S. 389, 392–93 (2015). Plaintiff’s Eighth Amendment claim must be analyzed under the Supreme Court authority limiting the use of force against prisoners. This analysis must be made in the context of the constant admonitions by the Supreme Court regarding the deference that courts must accord to prison or jail officials as they attempt to maintain order and discipline within dangerous institutional settings. See, e.g., Whitley v. Albers, 475 U.S. 312, 321–22 (1986). Not every shove or restraint gives rise to a constitutional violation. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) (holding that “[n]ot every push or shove . . . violates a prisoner’s constitutional rights” (internal quotations omitted)). On occasion, “[t]he maintenance of prison security and discipline may require that inmates be subjected to physical contact actionable as assault under common law.” Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002) (citing Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995)). Prison officials nonetheless violate the Eighth Amendment when their “offending conduct reflects an unnecessary and wanton infliction of pain.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks omitted); Bailey v. Golladay, 421 F. App’x 579, 582 (6th Cir. 2011). Furthermore, an officer is liable for another officer’s use of excessive force where the defendant “‘observed or 14 Case 2:23-cv-00145-MV ECF No. 12, PageID.79 Filed 09/25/23 Page 15 of 19 had reason to know that excessive force would be or was being used’ and ‘had both the opportunity and the means to prevent the harm from occurring.’” Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013) (emphasis in original) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)); accord Alexander v. Carter ex rel. Byrd, 733 F. App’x 256, 265 (6th Cir. 2018); Partin v. Parris, No. 17-6172, 2018 WL 1631663, at *3 (6th Cir. Mar. 20, 2018). There are simply no facts alleged in Plaintiff’s complaint from which the Court could infer that Defendant Pawley was aware that the unknown officers ordered inmate Crutcher-Bey to assault Plaintiff and failed to act to prevent the assault from occurring. Moreover, there are not facts alleged in the complaint to suggest that Defendant Pawley was present during the assault. The Sixth Circuit has held that where a defendant’s only involvement in the allegedly unconstitutional conduct is “the failure to act,” the defendant cannot be liable under § 1983. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Here, Defendant Pawley’s alleged failure to intervene on Plaintiff’s behalf after the assault does not amount to active unconstitutional behavior. See id. Plaintiff’s conclusory allegations are insufficient to allege that Defendant Pawley was personally involved in any violations of Plaintiff’s Eighth Amendment rights. Accordingly, for the reasons set forth above, Plaintiff’s Eighth and Fourteenth Amendment claims against Defendant Pawley premised upon excessive force and a failure to intervene will be dismissed. 3. Fourteenth Amendment Due Process The Court has liberally construed Plaintiff’s complaint to assert a Fourteenth Amendment due process claim against Defendant Pawley premised upon his issuance of the Class I misconduct ticket for fighting. Plaintiff contends that this misconduct is false. A prisoner’s ability to challenge a prison misconduct conviction depends on whether the conviction implicated any liberty interest. A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of his 15 Case 2:23-cv-00145-MV ECF No. 12, PageID.80 Filed 09/25/23 Page 16 of 19 sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). Under MDOC Policy Directive 03.03.105, ¶ C (eff. Apr. 18, 2022), a class I misconduct is a “major” misconduct and class II and III misconducts are “minor” misconducts. The policy further provides that prisoners are deprived of good time or disciplinary credits only when they are found guilty of a class I misconduct. Id. ¶ DDDD. Here, Plaintiff does not allege that the misconduct had any effect on the duration of his sentence—and he cannot. Plaintiff is serving numerous sentences imposed in 2011 and 2012 for crimes committed in 2009 and 2010. See MDOC Offender Tracking Information System, https://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=268663 (last visited Sept. 8, 2023). 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 in its [parole] determination.” Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011). Moreover, the sanctions which Plaintiff received—30 days’ toplock and 30 days’ LOP— are not atypical and significant to trigger due process protections. Pursuant to MDOC Policy Directive 03.03.105, the “loss of privileges” sanction involves the loss of various privileges, such as access to the day room, exercise facilities, group meetings, “[o]ut of cell hobbycraft activities,” the kitchen area, the general library (not including the law library), movies, music practice, and other “[l]eisure time activities.” MDOC Policy Directive 03.03.105, Attach. E. However, where a stay longer than 30 days in segregation is not considered an atypical or significant hardship, see 16 Case 2:23-cv-00145-MV ECF No. 12, PageID.81 Filed 09/25/23 Page 17 of 19 Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010), it defies logic to suggest that the lesser penalties of LOP and toplock for that duration could be atypical or significant. Sixth Circuit authority bears that out. See Ingram v. Jewell, 94 F. App'x 271, 273 (6th Cir. 2004) (holding that a fourteen-day loss of privileges sanction did not implicate the due process clause); Carter v. Tucker, 69 F. App'x 678, 680 (6th Cir. 2003) (nine-month loss of package privileges did not impose an atypical and significant hardship); Miles v. Helinski, No. 20-1279, 2021 WL 1238562, at *4 (6th Cir. Jan. 29, 2021) (five days’ toplock and five days’ loss of privileges fails to state a due process claim); Alexander v. Vittitow, No. 17-1075, 2017 WL 7050641, at *3 (6th Cir. Nov. 9, 2017) (concluding that “thirty days’ loss of privileges . . . did not implicate a protected liberty interest”); Langford v. Koskela, No. 16-1435, 2017 WL 6803554, at *3 (6th Cir. Jan. 24, 2017) (thirty days’ toplock and thirty days’ loss of privileges “does not amount to an ‘atypical and significant hardship’”). Plaintiff fails to allege any facts showing that he was subjected to conditions which would implicate a liberty interest as a result of the allegedly false misconduct ticket. Plaintiff’s Fourteenth Amendment due process claim premised upon such against Defendant Pawley will, therefore, be dismissed.3 3 To the extent Plaintiff raises a substantive due process claim regarding the allegedly false misconduct, he fails to state such a claim. “Substantive due process ‘prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.’” Prater v. City of Burnside, 289 F.3d 417, 431 (6th Cir. 2002) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). “Conduct shocks the conscience if it ‘violates the decencies of civilized conduct.’” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998)). With respect to an allegedly falsified misconduct report, the Sixth Circuit has held that framing an inmate by planting evidence may violate substantive due process where a defendant’s conduct shocks the conscience and constitutes an “egregious abuse of governmental power.” Cale v. Johnson, 861 F.2d 943, 950 (6th Cir. 1988), overruled in other part by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). Plaintiff’s complaint, however, is devoid of any allegations from which the Court could infer that any of the named Defendants acted to frame Plaintiff. 17 Case 2:23-cv-00145-MV ECF No. 12, PageID.82 Filed 09/25/23 Page 18 of 19 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 will also deny Plaintiff’s motion to appoint counsel (ECF No. 3). 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. Moreover, “[w]here a particular [a]mendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that [a]mendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273–75 (1994) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)) (holding that the Fourth Amendment, not substantive due process, provides the standard for analyzing claims involving unreasonable search or seizure of free citizens). If such an amendment exists, the substantive due process claim is properly dismissed. See Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013). In this case, the First and Eighth Amendments, as well as the Fourteenth Amendment’s protections regarding procedural due process, apply to Plaintiff’s claims for relief. Consequently, any intended substantive due process claim will be dismissed. 18 Case 2:23-cv-00145-MV ECF No. 12, PageID.83 Filed 09/25/23 Page 19 of 19 This is a dismissal as described by 28 U.S.C. § 1915(g). An order and judgment consistent with this opinion will be entered. Dated: /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge September 25, 2023 19

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