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Swanchara v. Falbo

United States District Court, W.D. Michigan, Northern Division
Nov 7, 2005
Case No. 2:05-cv-238 (W.D. Mich. Nov. 7, 2005)

Opinion

Case No. 2:05-cv-238.

November 7, 2005


OPINION


This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996) (" PLRA"), the court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C. §§ 1915(e)(2), 1915A. The court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728, 1733 (1992). Applying these standards, the court will dismiss Plaintiff's complaint for failure to state a claim.

Discussion

I. Factual Allegations

Plaintiff Kenneth Michael Swanchara, an inmate at the Kinross Correctional Facility (KCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Inspector Dan Falbo, Deputy Warden Keith Fecteau, and Warden Linda Metrish. Plaintiff alleges that he was sentenced to imprisonment for 18 to 60 months on April 24, 2001. Plaintiff resided at "camp facilities" from December 12, 2001, until November 23, 2003, and worked on a public work crew. Plaintiff states that Defendant Metrish is Warden at Camp Kohler, Hiawatha Correctional Facility (HTF), and KCF.

Plaintiff alleges that Defendant Metrish had him transferred from Camp Kohler to HTF without any explanation or justification on November 23, 2003. Plaintiff claims that on June 1, 2005, his security classification was changed from I to II without any justification. Plaintiff was interviewed by Michigan State Police detectives on June 2, 2005. Detective Smith told Plaintiff that Defendants Falbo and Fecteau had filed a complaint against Plaintiff, claiming that Plaintiff had written a letter threatening to kill children at random if the governor failed to get him paroled. Plaintiff was also accused of using profane and abusive language. Plaintiff denied ever making such threats, and the detectives read Plaintiff's letter aloud. The Michigan State Police detectives agreed that Plaintiff had not threatened to kill children or used profane language in an effort to force the governor to grant him parole.

Plaintiff was transferred to KCF on June 3, 2005. The receiving officer at KCF showed Plaintiff a misconduct ticket written by Defendant Falbo, which alleged that Plaintiff had threatened to kill children if the governor failed to get Plaintiff paroled. Sergeant Outwore failed to review the ticket with Plaintiff within the required 24 hours and when Defendant Falbo learned that the ticket was to be dismissed because of this problem, he rewrote the misconduct and dated it June 10, 2005. Plaintiff complained about this to the Hearings Investigator on June 13, 2005, and on June 30, 2005, the Hearings Officer dismissed the ticket. However, the Hearings Officer refused to give Plaintiff a copy of the letter at issue.

On July 5, 2005, Plaintiff filed a step I grievance on Defendant Falbo asking him to retract the false and malicious accusations he had made against Plaintiff. Plaintiff's grievance was denied on July 7, 2005. On July 16, 2005, Plaintiff filed a step II grievance appeal on Defendant Falbo, which was denied on August 4, 2005, by Defendant Metrish. On August 10, 2005, Plaintiff filed a step III grievance appeal on Defendant Falbo, which was denied on October 4, 2005.

Plaintiff claims that Defendants' conduct violated his rights under the First, Fifth, and Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages.

II. Lack of exhaustion of available administrative remedies

Plaintiff has failed to sufficiently allege and show exhaustion of available administrative remedies. Pursuant to 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. See Porter v. Nussle, 122 S. Ct. 983 (2002); Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819 (2001). The exhaustion requirement is mandatory and applies to all suits regarding prison conditions, regardless of the nature of the wrong or the type of relief sought. Porter, 122 S. Ct. at 984; Booth, 532 U.S. at 741, 121 S. Ct. at 1824. A district court must enforce the exhaustion requirement sua sponte. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833, 119 S. Ct. 88 (1998); accord Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).

A prisoner must allege and show that he has exhausted all available administrative remedies and should attach to his § 1983 complaint the administrative decision disposing of his complaint, if the decision is available. Brown, 139 F.3d at 1104. In the absence of written documentation, the prisoner must describe with specificity the administrative proceeding and its outcome so that the court may determine what claims, if any, have been exhausted. Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.), cert. denied, 531 U.S. 1040, 121 S. Ct. 634 (2000). A prisoner must specifically mention the involved parties in the grievance to make prison officials aware of the problems so that the prison has a chance to address the claims before they reach federal court. Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001).

Plaintiff's claims that he was improperly transferred and that his security level was increased without justification are the type of claims that may be grieved. See MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ E (may grieve "alleged violations of policy and procedure or unsatisfactory conditions of confinement") (effective Nov. 1, 2000). The burden to allege and show exhaustion belongs to Plaintiff. See 42 U.S.C. § 1997e(a); Knuckles El, 215 F.3d at 642; Brown, 139 F.3d at 1104. This requirement is "so that the district court may intelligently decide if the issues raised can be decided on the merits." Knuckles El, 215 F.3d at 642. Plaintiff attaches a copy of a grievance he filed on Defendant Falbo on June 24, 2005, to his complaint, as well as copies of his step II and III appeals. However, it does not appear that Plaintiff filed a grievance on either Defendant Fecteau or Defendant Metrish. An allegation that remedies have been exhausted is not enough, as a plaintiff must provide the decisions reflecting the administrative disposition of his claims or other evidence showing that he has exhausted his remedies. Williams v. McGinnis, No. 98-1042, 1999 WL 183345, at *1 (6th Cir. March 16, 1999). The Sixth Circuit has found that the district court is not required to hold evidentiary hearings on the issue of exhaustion or "spend a lot of time with each case just trying to find out whether it has jurisdiction to reach the merits." See Knuckles El, 215 F.3d at 642.

Because Plaintiff has only exhausted his claims against one of the named Defendants, the Court may dismiss his action pursuant to the "total exhaustion" rule. Under the total exhaustion rule, the presence of an unexhausted claim results in the dismissal of the entire action. Jones Bey v. Johnson, et al., 407 F.3d 801 (6th Cir. 2005). Dismissal of this action without prejudice is appropriate when a prisoner has failed to show that he exhausted available administrative remedies. See Freeman, 196 F.3d at 645; Brown, 139 F.3d at 1104; White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). Dismissal for failing to exhaust available administrative remedies does not relieve a plaintiff from payment of the civil action filing fee. Omar v. Lesza, No. 97 C 5817, 1997 WL 534361, at *1 (N.D. Ill. Aug. 26, 1997). Accordingly, the Court may dismiss Plaintiff's action without prejudice.

However, the Court need not first require exhaustion of available administrative remedies when the complaint may be dismissed because it is, "on its face, frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." 42 U.S.C. § 1997e(c)(2); Brown v. Toombs, 139 F.3d 1102, 1103 (6th Cir.), cert. denied, 525 U.S. 833 (1998). Because Plaintiff's complaint fails to state a claim, the court will dismiss the complaint with prejudice without first requiring Plaintiff to exhaust any available administrative remedies. III. 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), cert. denied, 510 U.S. 1177, 114 S. Ct. 1218 (1994). 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, 108 S. Ct. 2250, 2255 (1988); Street v. Corrections Corp. of America, 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, 114 S. Ct. 807, 811 (1994).

Plaintiff's complaint alleges that Defendants' actions violated his Fourteenth Amendment right to procedural due process. The Court concludes that this claim is without merit on the basis of Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995). In Sandin, the Plaintiff alleged that prison officials deprived him of procedural due process by refusing to allow him to present witnesses during a disciplinary hearing and then sentencing him to segregation for misconduct. Sandin, 515 U.S. at 474, 115 S. Ct. at 2294. In reversing the Ninth Circuit's decision that the prisoner had a liberty interest in remaining free of disciplinary segregation, the Supreme Court abandoned the search for mandatory language in prisoner regulations as previously called for under Hewitt v. Helms, 459 U.S. 460 (1983), and ruled instead that it was time to return to the due process principles which were established in Wolff v. McDonnell, 418 U.S. 539 (1974), and Meachum v. Fano, 427 U.S. 215 (1976). Sandin, 515 U.S. at 483, 115 S. Ct. at 2300 (internal citations omitted).

In Sandin, the Supreme Court noted that in some cases, a restraint might be so extreme as to implicate rights arising directly from the Due Process Clause itself. Sandin, 515 U.S. at 483-484, 115 S. Ct. at 2300 (internal citations omitted). In addition, the Court recognized that States may create liberty interests protected by the Due Process Clause where the freedom from restraint imposed "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S. Ct. at 2300. However, such restraints are rare and do not include, for example, transfer into solitary confinement. Sandin, 515 U.S. at 486, 115 S. Ct. at 2301. Nor is there any right under federal law allowing a prisoner to prevent a transfer to another facility or giving him any choice concerning the facility where he will be incarcerated. Meachum, 427 U.S. at 223-29; Olim v. Wakinekona, 461 U.S. 238 (1983). In Meachum, the Court held that transfers between prisons of different severity, such as between a medium security and a maximum security prison, did not deprive the prisoner of liberty within the meaning of the Due Process Clause.

A plaintiff seeking to allege a procedural due process violation based on a state created liberty interest must not only show it is derived from mandatory language in a regulation, but also that it imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S. Ct. at 2300; Rimmer-Bey, 62 F.3d at 7907-91. Pursuant to Sandin, "a liberty interest determination is to be made based on whether it will affect the overall duration of the inmate's sentence," and there is no evidence here that the change in security level will impact Plaintiff's sentence. Because Plaintiff in this case fails to allege facts constituting an "atypical and significant hardship," Plaintiff's claim that he was denied procedural due process is without merit.

Furthermore, Plaintiff's claims that Defendant Falbo made false charges against him to the Michigan State Police and wrote a false misconduct ticket on him fail to show a violation of his constitutional rights. Plaintiff's complaint, as well as the attached documents, establish that if Plaintiff had a right implicating the due process protections of the Constitution, Plaintiff received due process of law. In all cases where a person stands to be deprived of his life, liberty or property, he is entitled to due process of law. This due process of law gives the person the opportunity to convince an unbiased decision maker that, for example, he has been wrongly or falsely accused or that the evidence against him is false. Zinermon v. Burch, 494 U.S. 113, 127-28, 110 S. Ct. 975, 984 (1990). 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, 100 S. Ct. 553, 558, 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, 494 U.S. at 125, 110 S. Ct. at 983 (1990) (emphasis in original). Further, an inmate has no right to counsel in disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 569-70, 94 S. Ct. 2963, 2981 (1974); Franklin v. Aycock, 795 F.2d 1253, 1263 (6th Cir. 1986). Plaintiff was found not guilty of the misconduct and the Michigan State Police did not pursue any charges against him as a result of their interview with Plaintiff.

Plaintiff makes a conclusory statement that Defendants' actions violated his rights under the Fifth Amendment. The Double Jeopardy Clause of the Fifth Amendment precludes successive state proceedings that are essentially criminal in nature. Breed v. Jones, 421 U.S. 519, 527-528, 95 S. Ct. 1779, 1784-1785 (1974). In Breed, the Court noted that criminal proceedings impose heavy pressures and burdens on a person charged. Breed, 421 U.S. at 529-530, 95 S. Ct. at 1786. The purpose of the Double Jeopardy Clause is to ensure that a person not be subject to such a proceeding more than once for the same offense. Breed, 421 U.S. at 530, 95 S. Ct. at 1786. The Fifth Amendment also protects a person's right against self-incrimination. Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S. Ct. 1551, 1557 (1975). A prisoner may remain silent when charged with a prison rule infraction, but his silence during a prison disciplinary hearing may be weighed against him in determining his guilt. Palmigiano, 425 U.S. at 316-319, 96 S. Ct. at 1557-1558. Plaintiff in this case failed to allege any facts which would implicate his rights under the Fifth Amendment.

Plaintiff claims that Defendants subjected him to defamation, slander and libel in violation of his First Amendment rights. The First Amendment provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S.C.A. Const. Amend. 1. The First Amendment does not protect individuals from slander, libel and defamation.

To the extent that Plaintiff is claiming his state law rights were violated, this court will refuse to exercise pendent jurisdiction over such claims. Claims raising issues of state law are best left to determination by the state courts, particularly in the area of prison administration. In addition, pendent jurisdiction over state law claims cannot be exercised after all federal claims have been dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726-727, 86 S. Ct. 1130, 1139 (1966); Smith v. Freland, 954 F.2d 343, 348 (6th Cir.), cert. denied, 504 U.S. 915, 112 S.Ct. 1954 (1992).

That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.
United Mine Workers v. Gibbs, 383 U.S. 715, 726-727, 86 S. Ct. 1130, 1139 (1966).

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 $255 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 $255 appellate filing fee in one lump sum.

This is a dismissal for purposes of the "three strikes" provision, 28 U.S.C. § 1915(g).

A judgment consistent with this opinion will be entered.


Summaries of

Swanchara v. Falbo

United States District Court, W.D. Michigan, Northern Division
Nov 7, 2005
Case No. 2:05-cv-238 (W.D. Mich. Nov. 7, 2005)
Case details for

Swanchara v. Falbo

Case Details

Full title:KENNETH MICHAEL SWANCHARA, Plaintiff, v. DAN FALBO, et al., Defendants

Court:United States District Court, W.D. Michigan, Northern Division

Date published: Nov 7, 2005

Citations

Case No. 2:05-cv-238 (W.D. Mich. Nov. 7, 2005)