Opinion
Case No. 5:00-cv-56
February 5, 2001
JUDGMENT
In accordance with the opinion filed this date:
IT IS ORDERED that plaintiff's action be dismissed for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e), § 1915A, and 42 U.S.C. § 5 1997e(c).
For the same reasons that the court dismisses the action, the court discerns no good-faith basis for an appeal. 28
U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This is a dismissal as described by 28 U.S.C. § 1915(g).
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 proceedin 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 prose complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96 (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 is currently incarcerated in the Baraga Maximum Facility; however, the events giving rise to this action occurred while he was incarcerated in the Michigan Reformatory in Ionia. In his pro se complaint, plaintiff sues the following employees of the Michigan Reformatory: Officer Lori Smith, Sergeant Craig McLain, Hearing Officer John Spurgis and Officer Valerie Pluskhat.
Plaintiff's claims arise from a major misconduct charge he received from Officer Smith for disobeying a direct order. On June 19, 1998, Officer Smith gave plaintiff an order not to pass letters to another floor. Plaintiff complied with her order. Ten days later, on June 29, 1998, Smith wrote a misconduct against plaintiff for disobeying a direct order because she caught him passing letters. (See Attach. to Compl., 6/29/98 Major Misconduct Report.) Plaintiff was convicted of disobeying a direct order and was given thirty days' loss of privileges. See Attach. to Compl., 7/21/98 Major Misconduct Hearing Report.) On rehearing, plaintiff's misconduct conviction was overturned because the hearing officer determined that plaintiff was not on proper notice that the order given to him by Officer Smith on June 19 was still in effect on June 29. (See Attach. to Compl., 1/11/99 Major Misconduct Hearing Report.)
A "loss of privileges" sanction includes the loss of day room, exercise facilities, group meetings (except primary religious worship services), hobbycraft, kitchen area and equipment, library (except law library), movies, music practice, prisoner store (except for purchase of mandatory heath care, personal care, and hygiene products, and limited postage stamps), radio, tape player, television, recreational details, and telephone (except calls to Office of Legislative Corrections Ombudsman and to return a call from an attorney). See Mich. DEPT OF CORR., Policy Directive 03.03.105, Attachment D.
Plaintiff contends that Officer Smith violated his due process rights by charging him with the misconduct and that Officer Pluskhat also violated his due process rights by conspiring with Smith to bring the charge. Plaintiff further claims that Sergeant McLain acted in violation of the Due Process Clause when he reviewed the misconduct report and did not order an investigation with regard to the ten-day delay in bringing the charge. Finally, plaintiff alleges that Hearing Officer Spurgis, the officer who presided over the original misconduct hearing, violated plaintiffs due process rights by convicting him of a misconduct when he knew that an officer could not give an order that continued indefinitely into the future. For relief, plaintiff seeks compensation of $150 for each day that he suffered loss of privileges and $10,000 for his emotional distress.
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, 108 S.Ct. 2250, 2254-55 (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 due process claims must fail because he cannot establish that he has a protected liberty interest. Under Michigan law, good-time credits are automatically forfeited for the month that the guilty finding is made on a major misconduct. See MICH. COMP. LAWS § 800.33; MICA. DEPT of CORR., Policy Directive 03.03.105, BBB (effective January 1, 1999). In Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975 (1974), the Supreme Court held that when a state creates a right to good time credits and provides for their forfeiture based upon major misconduct, "the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment `liberty' to entitle him to those minimum procedures appropriate under the circumstances." It is clear that plaintiff received due process of law. Plaintiff received notice of the charges against him and a misconduct hearing. While the decision of Hearing Officer Spurgis may have been erroneous, it does not necessarily follow that plaintiff's due process rights were violated.See Martinez v. California, 444 U.S. 277, 284, n. 9, 100 S.Ct. 553, 558 n. 9 (1980)("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"). In this case, however, a liberty interest is no longer implicated because plaintiff's misconduct conviction was overturned and his good time restored. Plaintiff suffered only thirty days' loss of privileges that he served before the rehearing was held on his misconduct conviction.
A prisoner asserting that he was denied due process in connection with prison disciplinary hearings that resulted in segregation or a loss of privileges must make a threshold showing that the deprivation of which he complains imposed an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995). Plaintiff's loss of privileges, "though concededly punitive, [did] not present a dramatic departure from the basic conditions" of confinement. Sandin, 515 U.S. at 485, 115 S.Ct. at 2301. Instead, his punishment fell within the "expected parameters" of the "ordinary incidents of prison life." Id. at 485, 115 S.Ct. at 2300. The court concludes that thirty days' loss of privileges did not impose an "atypical or significant hardship" upon plaintiff. Under Sandin, therefore, plaintiff has not established that he has a protected liberty interest. See Wilson v. Wilkinson, No. 98-3713, 1999 WL 777634, at *1 (6th Cir. Sept. 17, 1999) (loss of privileges does not constitute an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life"); Magana-Cardona v. Papac, No. 98-15062, 1999 WL 97266, at *1 (9th Cir. Feb. 24, 1999)("[Plaintiff's] loss of privileges and reassignment to a security housing unit do not impose upon him an `atypical and significant hardship' within the meaning of Sandin"), cert. denied, 528 U.S. 833, 120 S.Ct. 91 (1999); Anderson v. Jones, No. Civ.A.98-0632-RV, 1999 WL 1565203, at *9 (S.D.Ala. Dec, 16, 1999) ("[I]t has been routinely held that loss of privileges is not `an atypical and significant hardship . . . in relation to the ordinary incidents of prison life'").
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 $105 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 $105 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.