Opinion
Case No. 5:01-cv-9
August 5, 2002
James Chipman, #130130 (pro se), Marquette Branch Prison, Marquette, MI, Counsel for Plaintiff(s).
Christine M. Campbell, Office of the Attorney General, Labor Division, Civil Service Section, Lansing, MI, Counsel for Defendant(s).
REPORT AND RECOMMENDATION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983 pertaining to Plaintiff's placement in segregation for approximately twelve years. Shortly after the action was filed, the Court dismissed the majority of Plaintiff's complaint pursuant to the Prison Litigation Reform Act for lack of exhaustion, except for a procedural due process claim. See March 27, 2001 Op. Ord. (docket #3-#4). The Court also dismissed the Michigan Department of Corrections as immune and Defendants Martin, Gundy, Ludwick and McDonald because Plaintiff failed to state a claim against them. The procedural due process claim was served upon the remaining defendants.
Thereafter, Plaintiff filed an amended complaint (docket #12) seeking to re-add Defendants Gundy and Ludwick and to submit evidence of exhaustion. The Court dismissed Plaintiff's amended complaint to the extent it attempted to re-add Defendants Ludwick and Gundy and claims that were dismissed as unexhausted. However, the Court denied Defendants' motion to dismiss based on abstention (docket #18).
The matter now is before the Court on the motion of remaining defendants Luoma, Wolfe, Porter, Panzer, Szymke, Abbott and Sharp for dismissal and for summary judgment (docket #20) on the sole remaining claim against them for violation of procedural due process.
Discussion
I. Factual allegations
Plaintiff presently is incarcerated at the Oaks Correctional Facility. In his pro se complaint, he originally sued twelve defendants: the Michigan Department of Corrections; its director, Bill Martin, MDOC Classification Director Nick Ludwick; David Gundy, the warden at the Oaks Correctional Facility; Oaks Deputy Wardens Wolfe and Tim Luoma; Oaks Assistant Deputy Wardens Syzmke, Panzer, and Pager; Oaks Resident Unit Managers Abbott and Sharpe; and Oaks Grievance Coordinator M.E. McDonald. As previously noted, following the prior decisions of this Court, the only remaining defendants are defendants Luoma, Wolfe, Porter, Panzer, Szymke, Abbott and Sharpe. Plaintiff's remaining claim arises from his continuing placement in segregation for more than twelve years.
The following facts are not in genuine dispute. On May 10, 1970, in Flint, Michigan, Plaintiff shot a .22 caliber rifle through the window of a car, seriously wounding Ronald Hastings and killing James Gardner. (Def. Ex. R: Bolden dep., ¶ 4.) On November 23, 1970, Plaintiff was arrested in Gainesville, Florida, on charges of First Degree Murder, and he was extradited to Michigan on December 17, 1970. (Bolden dep., ¶ 5.) On April 6, 1971, while in the custody of Genessee County Sheriff at a dentist's office in Flint, Plaintiff was involved in an attempted escape, which resulted in the death of Deputy Ben Walker and serious injury to Deputy Harry Abbott. (Bolden dep., ¶ 6.) On August 9, 1971, Plaintiff was sentenced to life imprisonment for First Degree Murder and 50-70 years for Assault with Intent to Commit Murder for the incident involving the sheriff's deputies. (Bolden dep., ¶ 7.) Plaintiff pleaded guilty to manslaughter on the incident involving Gardner and Hastings and received a sentence of 7 ½ -to-15 years. (Bolden dep., ¶ 8.)
On January 2, 1984, Plaintiff escaped through a window of the Dental Clinic at Huron Valley Men's Correctional Facility in Ypsilanti, Michigan, which was at the time a maximum security prison. He was apprehended in Arizona on February 17, 1984 and placed in administrative segregation at the Reception and Guidance Center in Jackson, Michigan. (Bolden dep., ¶ 9.) On July 15, 1988, Plaintiff was transferred on his own request to the maximum security unit of the State Prison of Southern Michigan in Jackson, Michigan. On April 24, 1989, he was transferred to the close security unit of that facility. (Bolden dep., ¶¶ 11, 12.)
In the MDOC, security classifications, from least to most secure, are: Community Status, Levels I, II, III, IV, V, VI, and segregation. MICH. DEP'T OF CORR., Policy Directive 05.01.130, ¶ H (effective May 28, 1996).
In 1990, Plaintiff was classified at Level IV at the State Prison of Southern Michigan. On January 26, 1990, Plaintiff escaped with four other prisoners through storm tunnels, kidnaping two corrections officers and stealing a department van. He was apprehended the same day following a high speed chase and was returned to the maximum security unit of the State Prison of Southern Michigan. (Bolden dep., ¶ 13.) Plaintiff was charged with five misconducts for assault on staff not causing serious injury, misuse of state property, possession of money, theft of property, and escape. Plaintiff was found guilty of all charges on February 1, 1990, and he was reclassified to Level V, administrative segregation at that facility. (Bolden dep., ¶ 14.)
There are various types of segregation, including administrative segregation and detention. Administrative segregation is the most restrictive and is imposed for institutional security, e.g., when a prisoner poses a serious escape risk. MICH. DEP'T OF CORR., Policy Directive 04.05.120, ¶ D (effective Feb. 21, 2000). Detention, or "punitive segregation" can be imposed as a sanction for committing a major misconduct, if ordered by the hearing officer. Id., ¶ G. If possible, detention is served in a "designated detention cell" rather than in administrative segregation. Id. A prisoner may not remain on detention for a period longer than that ordered by the hearing officer. Id. The behavioral adjustment of a prisoner in segregation is reviewed periodically with the prisoner. Id. ¶ WW. Reclassification from administrative segregation occurs only with the approval of the Security Classification Committee. Id., ¶ DDD. If the prisoner committed a serious assault, the approval of the Regional Prison Administrator is also required. Id.
In July 1990, in the Jackson County Circuit Court, Plaintiff was convicted of escape, kidnaping, auto theft, and assault on a correctional employee. He was acquitted of hostage taking and escape through the use of violence. On August 29, 1990, Plaintiff was sentenced to terms of 25-to-50 years for kidnaping, three years and four months for escape, 3-to-4 years for assaulting a prison employee and three years and four months for unlawfully driving away an automobile. (Bolden dep., ¶ 15.)
On September 4, 1990, Plaintiff was transferred to the Ionia Maximum Correctional Facility, a Level VI facility. (Bolden dep., ¶ 16.) All the inmates at IMAX are classified to administrative segregation. See Policy Directive, 05.01.140, attach. B. Approximately six years later, on April 5, 1996, Plaintiff was transferred to the administrative segregation unit at Oaks Correctional Facility, Level V. (Bolden dep., ¶ 17.)
Plaintiff alleges that Defendant Abbott actually placed him in punitive detention, which is a form of segregation, for two years and four months. He contends that that while he was segregated, the inmates around him caused the area to flood by clogging their toilets. Plaintiff was unable to use his electrical outlet and his legal papers were ruined. Inmates also threw feces and urine in the showers, and Plaintiff was forced to choose whether to take a shower in filthy conditions or not shower at all. Inmates also threw feces and urine on the meal trays as they were being wheeled by on a cart for distribution. The prisoners also made noise constantly, by banging on their footlockers, smashing their windows, drumming on their steel doors, and screaming. More than two years later, on August 26, 1998, Plaintiff was reassigned to administrative segregation. Plaintiff has provided a lengthy list of the privileges that prisoners in the general population had that Plaintiff did not. (See Compl., ¶¶ 67-88.) Plaintiff's claims relating to his punitive detention previously were dismissed for lack of exhaustion.
Pursuant to section 5 of Administrative Rule 791.44-5(4) and MICH. DEP'T OF CORR., Policy Directive 4.05.120, because Plaintiff was confined to administrative segregation for more than 30 days, Defendants were required to conduct monthly reviews of his segregation status. After 60 days, such reviews were required to be forwarded to the Deputy Director of the Bureau of Correctional Facilities. The reviews must advise the reasons for continued segregation, alternatives considered, the date classified to segregation, and the prospects for reclassification in the immediate future. R 791.4405(6). The policy directive also requires Warden approval for continuation in segregation for more than 30 days.See MICH. DEP'T OF CORR., Policy Directive 04.05.120 (III) (DD), (EE) (eff. 7-22-91); (NN), (00) (eff. 10-23-95); (WW), (XX), (YY) (eff. 2-21-00). Under the current policy directive, reclassification from administrative segregation status can occur only with the approval of the Security Classification Committee. Defendants have attached a complete set of copies of the monthly "Administrative Segregation Interview Reports" completed regarding Plaintiff's segregation. (Def. Ex. A.) Defendants also attach the annual "Security Classification Screen — Review" forms completed by the Oaks Correctional Facility between 1996 and 2000. (Def. Ex. B.)
Plaintiff complains that on January 26, 2000, Plaintiff's classification should have been but was not reduced to a Level II facility because in the past ten years, he had not attempted escape or assault and he had remained misconduct-free. In support of this proposition, Plaintiff relies upon the form responses on the February 11, 2000, Security Classification Screen — Review, which recites two sets of criteria and, depending on responses, results in a recommended confinement level for each set. (See Def. Ex. B.) The higher of the two is the presumptive confinement level, absent a decision to depart for reasons listed at the lower portion of the form. In his 2000 annual security classification review, because Plaintiff's escape attempt was now more than 10 years old, he presumptively would have been classified as a Level II. However, a decision was made to retain Plaintiff at Level V, representing a departure from the form questionnaire recommendation of Level II. (See Def. Ex. B.) The reason stated is "CFA Hold. Held staff hostage, SPSM escape 1990. Departed to Level V due to security concerns/management needs." (See 2/24/00 Security Class. Screen, attach. to Verified Compl.) Plaintiff has also provided a list of the numerous privileges that a Level II prisoner enjoys, in contrast to a person in administrative segregation. (See Verified Compl., ¶¶ 95-115; Chipman Aff. ¶¶ 65-84.)
In September 2001, Joe Barrett, Classification Director in Correctional Facilities Administration, brought to the attention of Deputy Director of Correctional Facilities Administration, Dan Bolden, a memorandum from the Corrections Ombudsman's Office that requested a review of Plaintiff's segregation status. (Bolden dep., ¶ 18.) After conducting the requested review, Bolden attests that he approved Plaintiff's reclassification to a level V general population facility. Bolden concluded that while Plaintiff's history of escape remained of concern, his ten subsequent years of administrative segregation with no major misconduct reports supported a release from administrative segregation. He determined that the general population units at Marquette Branch Prison provided the most optimal setting for Plaintiff's reduction in custody. (Bolden dep., ¶ 20.) Plaintiff acknowledges Bolden's decision and the reason for his transfer to Marquette Branch Prison. (See Pl. Ex. 13, p. 8.)
On the afternoon of September 18, 2001, Plaintiff was transferred from Oaks Correctional Facility to Marquette Branch Prison. On September 19, 2001, while conducting a shakedown of Plaintiff's property from Oaks Correctional Facility, Corrections Officer Terry Johnson found a handcuff key concealed in a deodorant container in Plaintiff's duffel bag, and he subsequently was found guilty of possession of Dangerous Contraband on October 2, 2001. (Bolden dep., ¶ 22; Def. Ex. 1 (Misconduct Summary); Def. Ex. P (Misconduct Record).)
In his original complaint Plaintiff listed seventy-seven counts for relief (see Compl., ¶¶ 124-282), which previously were summarized by this Court into the following five general grounds: (1) eleven years of segregation is inhumane, atypical cruel and unusual punishment; (2) administrative segregation is actually a form of punitive segregation; (3) the MDOC, to determine Plaintiff's classification and parole eligibility, relied on the false information that he was convicted of hostage taking; (4) Plaintiff's right to petition the government was violated because the MDOC has a policy of using its grievance mechanism to thwart full and fair redress of administrative remedies; and (5) the MDOC implements vague and overbroad rules governing his parole and classification. Plaintiff's only claim that was fully exhausted, and therefore the only one pending, in this action is whether he received procedural due process in the continuing reviews and decisions to maintain his placement in administrative segregation.
II. Standard of Review
Under Rule 12(b)(6), a complaint may be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true.Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). However, the court need not accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir. 1998). A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993) cert. denied, 510 U.S. 1177 (1994).
A court may decide a motion to dismiss only on the basis of the pleadings. Song v. City of Elyria, 985 F.2d 840, 842 (6th Cir. 1993). Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a claim. Craighead v. E.F. Hutton Co., 899 F.3d 485, 489-90 (6th Cir. 1990). Here, however, both Defendant and Plaintiff have attached and referred to materials outside the pleadings. Because the record contains material outside of the pleadings, which the Court will consider, the motion will be construed as one for summary judgment. FED.R.CIV.P. 12(b); Soper v. Hoben, 195 F.3d 845, 850 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000).
On a motion for summary judgment, the court must consider all pleadings, depositions, affidavits and admissions and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court, however, "`need not accept as true legal conclusions or unwarranted factual inferences.'" Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir. 2002) (quoting Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The party moving for summary judgment has the burden of pointing the court to the absence of evidence in support of some essential element of the opponent's case.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Once the moving party has made such a showing, the burden is on the nonmoving party to demonstrate the existence of a genuine issue for trial. Id.
In order to prove that a triable issue exists, the nonmoving party must do more than rely upon allegations, but must come forward with specific facts in support of his or her claim. Celotex, 477 U.S. at 322; Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002). After reviewing the whole record, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Booker v. Brown Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). "`[D]iscredited testimony is not [normally] considered a sufficient basis'" for defeating the motion. Anderson, 477 U.S. at 256-57 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984)). In addition, where the factual context makes a party's claim implausible, that party must come forward with more persuasive evidence demonstrating a genuine issue for trial. Celotex, 477 U.S. at 323-24; Matsushita, 475 U.S. at 586-87; Street, 886 F.2d at 1480.
III. Procedural Due Process
Plaintiff alleges that he is deprived of a liberty interest without due process by being detained in administrative segregation for more than ten years. The Supreme Court consistently has recognized that prisoners may claim the protections of the Due Process Clause. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556 (1974). As a result, prisoners may not be deprived of life, liberty or property without due process of law. Id. (citing Haines v. Kerkner, 404 U.S. 519 (1972); Wilwording v. Swenson, 404 U.S. 249 (1971); Screws v. United States, 325 U.S. 91 (1945)). However, the scope of prisoner due process rights may be subject to "restrictions imposed by the nature of the regime to which they have been lawfully committed." Wolff, 418 U.S. at 556.
The seminal decision in this area is the 1995 decision of the Supreme Court in Sandin v. Connor, 515 U.S. 472 (1995). In Sandin, a Hawaiian prisoner served approximately one month in disciplinary segregation after he was convicted of two misconduct charges. One of the misconduct charges was overturned. The Ninth Circuit found that the Hawaiian prison regulation created a liberty interest in remaining free of segregation by requiring substantial evidence to support a finding of guilty on a misconduct charge. The Supreme Court reversed, holding that neither the Hawaiian regulation nor the Due Process Clause created a liberty interest entitling the inmate to procedural due process. Id. at 487.
The Court emphasized that the inquiry of whether a liberty interest existed was not focused upon the language of the prison regulations, but upon the nature of the deprivation. Sandin, 515 U.S. at 481-82. Focusing upon the regulations themselves had improperly fostered a disincentive to codify prison management procedures and the involvement of federal courts in the operation of prisons. Id. at 482. A State could create a liberty interest of "real substance," for example, when its laws permitted an inmate to earn good-time credits which resulted in a shortened prison term. Id. at 483 (citing Wolfe, 418 U.S. 539). However, these interests "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84 (citations omitted).
The Sixth Circuit Court of Appeals, applying Sandin in three different cases, has held that an inmate's placement in administrative segregation does not violate the Due Process Clause. See Rimmer-Bey v. Brown, 62 F.3d 789 (6th Cir. 1995); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997), cert. denied, 522 U.S. 848 (1997); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998). In Rimmer-Bey, 62 F.3d 789, a Michigan prisoner was placed in punitive segregation for thirty days after he was convicted of conspiracy to commit assault and battery for stabbing a guard. After he served the time, the inmate was placed in administrative segregation. The Sixth Circuit rejected the inmate's claim that mandatory language in Michigan's prison regulations created a liberty interest in remaining in general population. The Court of Appeals further found that the placement in segregation was not an atypical and significant hardship in the context of the inmate's life sentence. Rimmer-Bey, 62 F.3d at 791. Further, because the plaintiff had been given a hearing related to his misconduct conviction, even if he had a liberty interest, his procedural due process rights had not been violated. Id.
In Mackey, a Michigan prisoner was placed in segregation after he was found guilty of misconduct. His release to general population was approved nine months later. However, he remained in administrative segregation for an additional four months due to a scarcity of beds at the two facilities that were eligible to receive him. The Sixth Circuit stated that the inmate "does not, and could not after Sandin, argue that placement in segregation is an `atypical and significant hardship.'"Mackey, 111 F.3d at 463. Further, the circumstances of the inmate's placement in segregation for almost one year did not create a liberty interest, and the failure to release him did not amount to a procedural due process violation. Id.
In its most recent published decision on this issue, Jones v. Baker, the Sixth Circuit addressed circumstances when an inmate was placed in segregation. During rioting, prisoners took nine hostages and murdered one guard. Before placement in segregation, each inmate was given a hearing, and the plaintiff refused to speak at his. If an inmate was cleared of wrongdoing, the inmate was returned to the general population. Eventually, the plaintiff was implicated in the murder, and thus remained in segregation. A period of 2 ½ years passed until the plaintiff was charged with misconduct and found guilty. The plaintiff challenged the 2 ½ -year period preceding the misconduct hearing. In analyzing the claim, the Sixth Circuit began with the proposition that "administrative segregations have repeatedly been held not to involve an `atypical and significant' hardship implicating a protected liberty interest without regard to duration." Jones, 155 F.3d at 812. Because a liberty interest is based upon whether the segregation affects the overall duration of the inmate's sentence, and the plaintiff was serving a term of 15 to 25 years for aggravated robbery, there was no evidence of any impact. Id. at 812. Further, the "atypical" length of his stay was justified given the investigation that was taking place regarding the riots. Id. at 812-13. Also, the record did not demonstrate that the conditions of the plaintiff's confinement were an "atypical and significant hardship" because his stay in segregation was not "much different than that experienced by other inmates in segregation." Id. at 813.
A. Liberty Interest
Applying these cases, Plaintiff has no liberty interest in remaining free of segregation on the facts of this case. Ordinarily, segregation does not present an "atypical and significant" hardship implicating a protected liberty interest. Although Plaintiff's twelve-year placement is lengthy, the Sixth Circuit has expressly indicated that length is not the determining factor. In Jones, the Sixth Circuit acknowledged that under Ohio law, segregation may continue indefinitely; however, the determination of whether a liberty interest exists is based upon "whether it will affect the overall duration of the inmate's sentence." Jones, 155 F.3d at 812; accord McGowan v. Settles, No. 99-5921, 2000 WL 658071, at *1 (6th Cir. May 9, 2000). As in Jones, there is no evidence that the segregation will impact Plaintiff's sentence. Plaintiff is serving a life term for first-degree murder. In addition, with the possible exception of the first two years at Oaks Correctional Facility, there is little on this record to indicate that Plaintiff's experience in administrative segregation has been any different from the experiences of all the other inmates who are segregated in administrative detention. See McGowan, 2000 WL 658017, at *1 (plaintiff failed to allege that "continued placement in segregation significantly disrupts his environment"). Plaintiff alleges that some prisoners in administrative segregation are allowed to participate in religious and educational programming, while he is not. This allegation, however, fails to demonstrate the sort of atypical hardship required under Sandin. Plaintiff's pending claim does not raise a First Amendment issue. Likewise, no Equal Protection claim presently is before the court. Instead, Plaintiff attempts to demonstrate that the difference renders his confinement "atypical." The prison regulations upon which Plaintiff relies, however, expressly contemplate that privileges such as religious programming are only available to prisoners in administrative segregation when "they can be afforded safely and are administratively feasible." Plaintiff provides no specific evidence that his own treatment is in any way unusual.
Any arguable defect at Oaks between 1996 and 1998 is not relevant to plaintiff's continuing complaint regarding procedural due process, but instead is relevant to his Eighth Amendment claims.
Indeed, at least two of the other prisoners who participated in the 1990 escape also have been subjected to long periods of segregation, strongly suggesting that Plaintiff's treatment is far from atypical. See Rodgers v. Johnson, Case No. 2:00-cv-46 (W.D. Mich.); McGaughey v. Johnson, Case No. 99-CV-70944-DT (E.D. Mich.). In McGaughey, the magistrate judge issued a report and recommendation on September 27, 2001, which was adopted by the district court on March 29, 2002, granting defendant's motion for summary judgment. In Rodgers, the magistrate judge issued a report and recommendation on January 15, 2002, which was adopted on March 18, 2002, dismissing Plaintiff's complaint on the grounds that continued confinement in administrative segregation is not an atypical or significant hardship. See also Williams v. Palmer, Case No. 4:00-cv-195 (W.D.Mich. July 23, 2001) (finding no due process violation in an 18-year confinement to administrative segregation).
I therefore conclude that Plaintiff has no liberty interest in being released from administrative segregation.
B. Procedural Due Process
Even if Plaintiff's incarceration for a 12-year period is deemed to be atypical and significant, Plaintiff has received all the process to which he is entitled under the Due Process Clause. The Due Process Clause does not guarantee that the procedure will produce a correct decision. "It must be remembered that even if a state decision does deprive an individual of life, [liberty], or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual's right to due process." Martinez v. California, 444 U.S. 277, 284, n. 9 (1980). "[T]he deprivation by state action of a constitutionally protected interest in "life, liberty or property" is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original).
Before Sandin was decided, the law in this area was supplied by Hewitt v. Helms, 459 U.S. 460 (1983). In Hewitt, the Supreme Court held that the states could create a liberty interest in general population classification through mandatory language found in regulations. If so, the Due Process Clause required some sort of periodic review of segregation status:
Of course, administrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates. This review will not necessarily require that prison officials permit the submission of any additional evidence or statements. The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner — which will have been ascertained when determining to confine the inmate to administrative segregation — and on the officials' general knowledge of prison conditions and tensions, which are singularly unsuited for "proof" in any highly structured manner.459 U.S. at 477 n. 9. Sandin overruled Hewitt on the existence of a liberty interest arising from administrative regulations. However, it did not purport to disturb Hewitt's holding concerning the extent of process due a prisoner in segregation. Consequently, even if the Court assumes that 12 years in segregation is so atypical that a liberty interest would be recognized, the process due a prisoner with such an interest is merely the periodic review dictated by Hewitt.
Applying Hewitt, I find that Plaintiff's original placement and continuation in segregation is well-supported in the record and therefore meets due process standards. The decision to place Plaintiff in administrative segregation in 1990 occurred after Plaintiff was found guilty of a major misconduct for escape, assault on staff not causing serious injury, misuse of state property, possession of money, and theft of property. He thereafter was convicted in a criminal trial of escape, kidnaping, assaulting a prison employee, and unlawfully driving away an automobile. The 1990 escape itself followed his 1971 escape from custody that resulted in the death of a deputy and Plaintiff's conviction for first-degree murder. It also followed Plaintiff's 1984 escape from a maximum security facility. Plaintiff presented an obvious and serious security risk.
The decision to continue plaintiff's segregation status also is penalogically justified. Plaintiff's history of escape and assault demonstrates a highly risky potential for further escapes. Plaintiff made not one, but three, escape attempts, in 1971 (when he killed one deputy and injured another), in 1984 (when he escaped from custody at a maximum security institution), and 1990 (during which he kidnaped and assaulted prison officers). His 1990 escape attempt followed very shortly upon the heels of a reduction in his prison classification. While Plaintiff remained misconduct — and escape — free during eleven years in administrative segregation, Plaintiff's prior history of escaping from a maximum security general population and the physical risks and injuries to officers during those prior escapes represent a more significant risk than a single escape attempt.
Moreover, in September 2001, Deputy Director Dan Bolden, responding to a request from the Ombudsman's Office, conducted a new review of Plaintiff's status. At that time, Bolden concluded that while Plaintiff continued to represent a very substantial risk, he could be managed at a Level V general population facility. Bolden therefore authorized Plaintiff's release from administrative segregation and ordered Plaintiff transferred to the Marquette Branch Prison for confinement in the general population. Plaintiff was transferred to that facility on September 18, 2001. In a shakedown of the property that was transferred with Plaintiff from Oaks, corrections officers found a handcuff key secreted in a deodorant container. Plaintiff was charged with Possession of Dangerous Contraband and was convicted on October 2, 2001. The behavior leading to the October 2, 2001, misconduct conviction is directly related to the prior reason for his confinement in administrative segregation — his potential for attempting further escapes.
Plaintiff does not claim that his misconduct finding was somehow invalidated. He may not now re-litigate the circumstances giving rise to the guilty finding without showing that the guilty finding has somehow been invalidated. See Edwards v. Balisok, 520 U.S. 641, 646 (1997); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In cases decided under Hewitt, the Sixth Circuit routinely has held that an administrative finding of guilty in a misconduct proceeding was sufficient to justify placement or maintenance in segregation, without the necessity for a separate hearing. See Walker v. Mintzes, 771 F.2d 920, 933-34 (6th Cir. 1985);Harris-Bey v. Foresman, No. 93-1963, 1994 WL 18013, at *1-*2 (6th Cir. Jan. 21, 1994); Fleetwood v. Brown, No. 91-1699, 1991 WL 225559, at *1 (6th Cir. Nov. 4, 1991); Eaddy v. Spurgis, No. 84-1419, 1985 WL 14065, at *1 (6th Cir. Dec. 18, 1985).
Thus, just as he did in 1990, Plaintiff broke the trust of his captors. It is no surprise that Plaintiff will be required to maintain good behavior for an additional period of time before he can regain that trust. Otherwise, returning him to general population at the present time poses a security risk that defendants have determined is not reasonable.
Consequently, Plaintiff's maintenance in administrative segregation is amply supported by numerous findings against him, some of them made in criminal trials beyond a reasonable doubt. As his rights in this area are procedural only, the requirements of the Due Process Clause were amply satisfied by the administrative misconduct findings and convictions for escape and violent criminal behavior that formed the basis for his segregation. Moreover, Plaintiff received the periodic reviews required by Hewitt. Defendants have submitted copies of his numerous periodic reviews. (See Def. Ex. A, B.) Plaintiff does not dispute this fact; rather, he contends that defendants' review was simply rote and meaningless because he claims he was not interviewed during these reviews. On this point, as well, he is incorrect. The decision to continue an inmate in segregation is partially based upon a recommendation by the unit team directly responsible for Plaintiff's supervision. Plaintiff does not allege that the unit team's investigation into his history was incomplete or rote; rather, he wishes the defendants had accepted the unit team officers' off-and-on recommendations beginning in 1996 that Plaintiff be released to general population. When the SCC rejected the unit team's recommendation, it clearly noted the reason for the rejection, citing the nature of Plaintiff's prior escape attempts. The request for unit team review and independent review with explanation by the SCC is evidence that each decision is made with serious consideration. Thus, there is nothing to show that the decision was a "pretext for indefinite confinement." Hewitt, 459 U.S. at 477 n. 9.
Moreover, to the extent Plaintiff contends that a genuine issue of fact exists whether he was entitled to be interviewed during the course of his reviews under MICH. DEP'T OF CORR., Policy Directive 4.05.120(III)(WW), that dispute is not material to the question before this court. The fact that Michigan Department of Corrections policy may require an interview does not itself create a constitutional entitlement to such procedure. Claims under § 1983 may not be based upon alleged violations of state law, nor may federal courts order state officials to comply with their own law. See Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Plaintiff does not enjoy any federally protected liberty or property interest in state procedure. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983); Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994), cert. denied, 115 S.Ct. 1118 (1995).
Instead, the procedure required by the Constitution is that set forth in Hewitt, which mandates no more than "some sort of periodic review. . . ."Hewitt, 459 U.S. at 477 n. 9. It does not impose the requirements of any particular state procedure. Plaintiff unquestionably received regular monthly reviews of his confinement. Each review required input from several sources and varied in some respect from review to review. Each review, by its terms, was based on Plaintiff's conduct both before segregation and after. On the undisputed factual record, Plaintiff received more than adequate procedural due process.
In essence, Plaintiff asks this Court to substitute its judgment for that of prison officials concerning the most appropriate classification of a highly assaultive prisoner. It is not for the federal court to engage in oversight of decisions affecting prison management. The Supreme Court has continuously cautioned federal courts from assuming "a greater role in decisions affecting prison administration." Shaw v. Murphy, 121 S.Ct. 1475, 1480 (2001); see also Washintgon v. Harper, 494 U.S. 210, 224 (1990); Turner v. Safley, 482 U.S. 78, 84-96 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Bell v. Wolfish, 441 U.S. 520, 547 (1979); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125-126 (1977). These concerns are even stronger when a state penal institution is involved. Glover v. Johnson, 138 F.3d 229, 241 (6th Cir. 1998). Plaintiff's circumstances do not present a constitutional violation necessitating federal court intervention.
Recommended Disposition
For the foregoing reasons, I respectfully recommend that the Court grant Defendants' motion to dismiss and for summary judgment (docket # 20) and that judgment be entered for defendants.
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. Civ. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn, 474 U.S. 140 (1985).