Opinion
Case No. 2:08-cv-250.
February 25, 2009
OPINION
This is a civil rights action brought by a former state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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 AllegationsPlaintiff Kevin Harris, a former inmate in the MDOC, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Resident Unit Officer Peter Goodreau, Resident Unit Officer Unknown Kallio, Captain Unknown Chappel, Kevin Lampela and Karin Adams. In his complaint, Plaintiff states that while he was incarcerated at the Baraga Maximum Correctional Facility (AMF), Defendants retaliated against him for his use of the grievance system by keeping him in segregation, threatening him with false misconduct tickets and verbally harassing him.
Plaintiff states that on May 13, 2005, he was escorted to a reclassification hearing, where he was referred to as "Paralegal Harris" or "Dumbfuck." Before Plaintiff was released from segregation, Defendant Lampela attempted to bait Plaintiff into fighting and told Plaintiff that he would be back in segregation soon. On another date in May of 2005, Defendant Goodreau verbally harassed Plaintiff, causing him to have "unsettling and mean thoughts." Plaintiff then filed a grievance on Defendant Goodreau. When Defendant Goodreau found out about the grievance, he came to Plaintiff's cell and told Plaintiff that the reason he had been in the hole for so long was because of his use of the grievance procedure. Plaintiff claims that in either May or June of 2005, Defendant Goodreau came to his cell and claimed that he had heard that Plaintiff wanted to hurt him. Later that day, Defendant Chappell and Lieutenant Smith came to Plaintiff's cell and questioned him about his grievance on Defendant Goodreau, repeatedly asking Plaintiff if he wanted to hurt Defendant Goodreau.
Plaintiff claims that on June 8, 2005, Defendant Goodreau "set [him] up" and had Plaintiff put back into segregation. When Plaintiff stated that he was going to complain to the Deputy Warden, Defendants Goodreau and Kallio told him that he was a "goner." On October 7, 2005, Defendant Lampela had Plaintiff "set up" on a misconduct ticket in order to extend Plaintiff's stay in segregation. Plaintiff seeks damages and equitable relief.
II. Failure to state a claim
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). 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).
Initially, the court notes that a number of Plaintiff's claims are barred by the statute of limitations. State statutes of limitations and tolling principles apply to determine the timeliness of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See MICH. COMP. LAWS § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, *1 (6th Cir. Feb. 2, 1999). Accrual of the claim for relief, however, is a question of federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of limitations begins to run when the aggrieved party knows or has reason to know of the injury that is the basis of his action. Collyer, 98 F.3d at 220. Plaintiff's claims which occurred in May and June of 2005 are untimely. Plaintiff had reason to know of the "harms" done to him at the time they occurred. However, he did not file his complaint until October 3, 2008, past Michigan's three-year limit. Moreover, Michigan law no longer tolls the running of the statute of limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS § 600.5851(9). Further, it is well-established that ignorance of the law does not warrant equitable tolling of a statute of limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep't of Justice, No. 01-5701, 2002 WL 1334756, *2 (6th Cir. June 17, 2002). Therefore, the only claims which are not barred by the statute of limitations are the claims which arose in October of 2005.
28 U.S.C. § 658 created a "catch-all" limitations period of four years for civil actions arising under federal statute enacted after December 1, 1990. The Supreme Court's decision in Jones v. R.R. Donnelley Sons Co., 541 U.S. 369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981 does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil rights actions under § 1983 were not "made possible" by the amended statute. Id. at 382.
Moreover, Plaintiff's claims regarding allegedly false major misconduct tickets are barred by the Court's holding in Heck v. Humphrey, 512 U.S. 477 (1994). The Supreme Court has held that claims for declaratory relief and monetary damages, which necessarily implies the invalidity of the punishment imposed, are not cognizable under § 1983 until the conviction has been overturned. Edwards v. Balisok, 520 U.S. 641, 648 (1997) (addressing allegations of deceit and bias on the part of the decisionmaker in a misconduct hearing). The Court relied upon Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been [overturned]." Edwards, 520 U.S. at 646 (emphasis in original). 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); 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. Accordingly, because Plaintiff has not shown that his convictions have been invalidated, his claims are 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).
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).
Plaintiff also claims that Defendants' harassed him in retaliation for filing grievances and in violation of his Eighth Amendment rights. Claims of abusive language, or of general harassment, do not state an eighth amendment or substantive due process violation. Ivey v. Wilson, 832 F.2d 950 (6th Cir. 1987); Ishaaq v. Compton, 900 F. Supp. 935, 944 (W.D. Tenn., 1995); Meadows v. Gibson, 855 F. Supp. 223, 225 (W.D. Tenn., 1994); Banks v. Klapish, 717 F. Supp. 520 (W.D. Mich. 1989); Gilson v. Cox, 711 F. Supp. 354 (E.D. Mich. 1989); Rahman v. Stephenson, 626 F. Supp. 886, 888 (W.D. Tenn. 1986). 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. County of Oakland, 758 F.2d 147, 152 (6th Cir. 1985).
Plaintiff also claims that this harassment violated his right to be free from retaliation. 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. Thaddeus-X, 175 F.3d at 394. Moreover, 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)). In this case, Plaintiff claims that he was subjected to harassment and threats of misconduct tickets. Such conduct is not sufficiently adverse to deter a person of ordinary firmness from engaging in that conduct. Therefore, Plaintiff's retaliation claims lack merit.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the court determines that Plaintiff's action fails to state a claim and will therefore be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b); 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). 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 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 appellate filing fee in one lump sum.
This dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.