Marshall-Sewell v. Hurst

UNITEDSTATESDISTRICTCOURT EASTERN DISTRICT OF MICHIGAN SOUTHERNDIVISION CALVIN EUNICE MARSHALL-SEWELL, Plaintiff, CaseNumber23-10725 HonorableDavidM.Lawson v. C/O(FNU)HURST,SGT.(FNU)KENNEDY, (FNU)HOLZSCHU,HI(FNU)AUSTIN, JOHNDOE, Defendants. / OPINIONANDORDERSUMMARILYDISMISSINGTHECOMPLAINTAND DENYINGPLAINTIFF’S MOTIONFORAPPOINTMENTOFCOUNSEL Plaintiff Calvin Eunice Marshall-Sewell, a prisoner at the Michigan Department of Corrections (MDOC) Carson City Correctional Facility in Carson City, Michigan, filed a complaint without the assistance of a lawyer against four corrections officers and a hearing investigator alleging that the defendants issued him a retaliatory misconduct ticket and violated his due process rights during disciplinary proceedings. After conducting the screening required by the Prison Litigation Reform Act (PLRA), it appears that Marshall-Sewell has failed to state a claimuponwhichreliefmaybegranted. TheCourtthereforewilldismissthecomplaintanddeny Marshall-Sewell’s motion forappointmentofcounsel. I. Marshall-Sewell alleges that on December 4, 2022, defendant Corrections Officer Hurst issued him a misconduct report for assault and battery against another prisoner. ECF No. 1, PageID.7, 16. According to the report, he allegedly participated with three other prisoners in an assault against an individual inmate. Id. at PageID.16. Following the misconduct report, an “unknown officer” (included as a “John Doe” defendant) strip-searched him and took him to segregation. Id. at PageID.7. Marshall-Sewell states that once in segregation, he asked to see a sergeant. He wasplacedonobservation for makingthat request. Ibid. According to the MDOC policy statement attached to the complaint, misconduct reports must be reviewed with prisoners within twenty-four hours of their issue. Id. at PageID.18. Defendant Kennedy wrote in the misconduct report that Marshall-Sewell refused to participate in thereviewandthatherefusedtosigntheticket. Id.atPageID.16. Marshall-Sewelldisputesthis, alleging he was sleeping when Kennedy came to review the ticket with him, and that the review wasnot held. Id.at 17,19. ThemisconductreportalsosaysthatdefendantHolzschu“rereviewed”themisconduct“to reflect change in charge.” Id. at PageID.16. But Marshall-Sewell alleges Holzschu “never reviewed prisoner at all [and] falsified documents . . .” Id. at PageID.7. Defendant Austin, the hearing investigator, was informed of the “due process violation [but] never tried to resolve [the] issue.” Ibid. TheAdministrativeLawJudgewhoadjudicatedthemisconductreviewedthefacilityvideo recording of Marshall-Sewell in observation, which showed two officers attempting to awaken him. Id. at PageID.19. The ALJ agreed with Marshall-Sewell that no review was held and dismissedtheticketfollowingtheDecember13,2022hearing. Ibid. TheALJnotedthat“[f]ailing to review the Misconduct Report with prisonerconstitutes adueprocessviolation.” Ibid. Marshall-Sewelldescribesthemisconductreportasretaliatory. ECFNo.1,PageID.4,10. As for the injuries he suffered, he asserts that he did not eat for at least three days, and that he “s[aw] mental health.” Id. at PageID.8. He alleges that the defendants’ actions include First Amendment retaliation, a due process violation, and the “denial of life and liberty by being restrained.” Id. at PageID.4. He seeks $10,000,000 in monetary and punitive damages. Id. at PageID.8. II. When, as here, a plaintiff has asked the Court to waive fees and costs because he cannot affordtopaythem,theCourt hasanobligationto screenthecaseformeritand dismissthecaseif it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2)(B). In addition, Congress mandated in the Prison Litigation Reform Act (PLRA) that theCourtscreenforcolorablemeriteveryprisonercomplaintfiledagainstastateorgovernmental entity. 28 U.S.C. § 1915A(a) (“The court shall review, before docketing, if feasible or, in any event,assoonaspracticableafterdocketing,acomplaintinacivilactioninwhichaprisonerseeks redress fromagovernmental entityorofficeroremployee of agovernmentalentity.”). A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). “A complaint lacks an arguable basis in law or fact if it . . . is based on legal theories that are indisputably meritless.” Brownv.Bargery,207F.3d863,866(6thCir.2000)(citing Neitzke,490U.S.at32728). Dismissal on the Court’s initiative is appropriate if the complaint lacks an arguable basis when filed. Goodell v. Anthony, 157F.Supp.2d796,799(E.D.Mich.2001). Althoughacomplaintfiledbyanunrepresentedpartymustbeconstruedliberally,Erickson v.Pardus,551U.S.89,94(2007),“[t]heleniencygrantedtoprose[litigants]...isnotboundless.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). The screening mandated by Congress in section1915(e)(2)includestheobligationtodismisscivilcomplaintsfiledbyunrepresentedfilers if they “fail[] to state a claim on which relief may be granted.” 28 U.S.C. § 1915 (e)(2)(B)(ii); McGorev.Wrigglesworth,114F.3d601,604(6thCir.1997),overruledonothergroundsbyJones v. Bock, 549U.S.199(2007). Toavoiddismissal,acomplaintmustinclude“enoughfactstostateaclaimtoreliefthatis plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556U.S.662,678(2009)(citingTwombly,550U.S.at556). Althoughthispleadingstandarddoes notrequire“detailed”factualallegations,ibid.,itdoesrequiremorethanthebareassertionoflegal conclusions or “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ibid. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ibid. “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ibid. Marshall-Sewell bases his claims on 42 U.S.C. § 1983 , which provides a vehicle for individualstoseekredressincourtforviolationsofrightssecuredbytheConstitutionandlawsof the United States. To state a claim under that section, “a plaintiff must set forth facts that, when construedfavorably,establish(1)thedeprivationofarightsecuredbytheConstitutionorlawsof theUnitedStates(2)causedbyapersonactingunderthecolorofstatelaw.” Dominguezv.Corr. Med.Servs.,555F.3d543,549(6thCir.2009)(quotingSigleyv.CityofParmaHeights,437F.3d 527,533(6thCir.2006)). “Becausevicariousliabilityisinapplicableto...§1983suits,aplaintiff mustpleadthateachGovernment-officialdefendant,throughtheofficial’sownindividualactions, has violated the Constitution.” Iqbal, 556 U.S. at 676;see also Frazier v. Michigan, 41 F. App’x 762,764 (6thCir.2002)(citingHallv.UnitedStates,704F.2d246,251(6thCir.1983))(holding that the “complaint must allege that the defendants were personally involved in the alleged deprivationoffederalrights.”) Marshall-Sewellallegesinhiscomplaintthatthedefendantsviolatedhisdueprocessrights, retaliatedagainsthiminviolationoftheFirstAmendment,anddeniedhimlifeandlibertywithout due process. However, after reviewing all the allegations, the Court must conclude that the complaint failsto state aclaimonwhichreliefmaybegrantedandmustbedismissed. A. Marshall-Sewell first alleges that the defendants violated his due process rights. In Wolff v.McDonnell,418U.S.539(1974),theSupremeCourtestablisheddueprocessrightsforprisoners facing disciplinary actions under certain circumstances. Wolff requires “(1) ‘advance written notice of the claimed violation,’ at least twenty-four hours before a disciplinary hearing; (2) an opportunity,whenconsistentwithinstitutionalsafetyandcorrectionalgoals,‘tocallwitnessesand present documentary evidence in [the prisoner’s] defense’; and (3) ‘a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.’” Farmerv.Phillips,No.20-5730,2021WL6210609,at*3(6thCir.Oct.19,2021)(quotingWolff, 418U.S.at563-67). However, courts generally agree thatWolff did not establish a free-standing entitlement to its notice and hearing provisions. A prisoner does not have a protected liberty interest in the process of prison disciplinary proceedings unlessthe resulting sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship ontheinmateinrelationtotheordinaryincidentsofprisonlife.” Sandinv.Conner,515U.S.472, 484, 487 (1995). More recent decisions hold that Wolff’s “more formal adversary-type procedures” applied specifically to the “revo[cation of] good-time credits for specific, serious misbehavior.” Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (citing Wolff, 418 U.S. at 539); see also Turner v. Wilkinson, 20 F. App’x 329, 330 (6th Cir. 2001) (holding that where the plaintiff didnotallegeaprisonerwasdeniedgoodtimecredits,Wolff’sdueprocessrequirementswerenot applicable); Smith v. Washington, No. 21-11670, 2021 WL 3681142 , at *2 (E.D. Mich. Aug. 19, 2021) (citing Wolff, 418 U.S. at 557) (“The Wolff Court did not create a free-floating right to due processthatattachestoallprison disciplinary proceedings.”). The Administrative LawJudge who adjudicated the misconductreport acknowledgedthat “a due process violation” occurred by the failure to provide notice of the misconduct charges withintwenty-four-hoursoftheirissue. ECF No.1,PageID.19. However,thenoticeandhearing requirements on which the ALJ relied were established by a MDOC Policy Directive and the MDOC Hearings Handbook. Id. at PageID.18. “Failing to followproper [internal] procedures is insufficient to establish an infringement of a liberty interest” and will not support an alleged due process violation. Grinter v. Knight, 532 F.3d 567, 574-75 (6th Cir. 2008) (citing Olim v. Wakinekona,461U.S.238,250(1983)). Marshall-Sewell does not allege that he faced a longer sentence or the loss of good time credits, so the departure from Wolff’s due process requirements does not support an alleged constitutionalviolation. ThefailurebythedefendantstofollowMDOCprocedureledtodismissal of the charges against Marshall-Sewell. His sentence was unaffected, and no restrictions were imposed upon him following the ticket’s adjudication. Therefore, there was no violation of his dueprocessrights. B. Marshall-Sewell also alleges that his right to life and liberty was violated because he was taken to segregation after he received a misconduct ticket for fighting and thereafter was placed underobservation.ThatconductdoesnotimplicatetheEighthAmendmentorhislibertyinterests undertheDueProcessClause. As explained above, prison disciplinary proceedings do not implicate due process rights unless the duration of a prisoner’s sentence is affected or “atypical and significant hardship” results. Sandin, 515 U.S. at 484, 486-87. Segregation “is the sort of confinement that inmates shouldreasonablyanticipatereceivingatsomepointintheirincarceration.” Josephv.Curtin, 410 F. App’x 865, 867-68 (6th Cir. 2010) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). Segregation is considered atypical and significant only in “extreme circumstances, such as . . . indefiniteadministrativesegregation.” Id.at868(citingHarden-Beyv.Rutter,524F.3d789,795 (6thCir.2008)). Generally,segregationwillnotbefoundtosupportanEighthAmendmentclaim, “[b]ecause placement in segregation is a routine discomfort that is a part of the penalty that criminaloffenderspayfortheiroffensesagainstsociety.” Murrayv.UnknownEvert,84F.App’x 553,556(6thCir.2003)(citing Hudsonv.McMillian,503U.S.1,9(1992)). TheSixthCircuitexpresslyhasfoundthatdetentioninsegregationfollowingadisciplinary charge is not unconstitutional. Id. at 555 ; see also Bishawi v. Northeast Ohio Corr. Ctr., 628 F. App’x 339, 344 (6th Cir. 2014) (concluding that a prisoner’s confinement in segregation for 69 days pending an investigation of disciplinary charges did not violate his procedural due process rights). Again,Marshall-Sewelldoesnotallegethemisconductchargeaffectedthedurationofhis sentence. His ten-day confinement in segregation between ticket and adjudication does not implicateeithertheDueProcessClauseortheEighthAmendment. Heallegesthat“observation” caused him injury, but he alleges nofacts to support a contention thatthestatuscausedmorethan a “routine discomfort” or was a significant hardship. He has not stated a claim upon which relief maybegranted. C. Next, Marshall-Sewell alleges that the misconduct report for fighting violated his First Amendmentrighttobefreefromretaliation. Aplaintiffseekingtoestablishaclaimforretaliation plausiblymustallegethat:“(1)heengagedinprotectedconduct;(2)thedefendanttookanadverse action against him ‘that would deter a person of ordinary firmness from continuing to engage in that conduct’; and (3) . . . the adverse action was taken (at least in part) because of the protected conduct.” Thomasv.Eby, 481F.3d434,440(6thCir.2007) (quoting Thaddeus-Xv.Blatter, 175 F.3d378, 394(6th Cir.1999) (enbanc)). Marshall-Sewell fails to satisfy two of the three elements of a retaliation claim. Only the second element is met: placement in administrative segregation is considered an adverse action becauseitincreasestherestrictionsonaprisoneranddecreaseshisprivileges. Hillv.Lappin,630 F.3d468,474(6thCir.2010). Astotheothertwoelements,nothinginthecomplaintandattached exhibitscontainsfactualallegationstosupporteitherone. Thatis,Marshall-Sewelldidnotallege that he engaged any protected conduct that would have motivated Hurst to issue him a ticket for fighting. Nordidheallegeanyfactsthatwouldsupportfindingacausallinkbetweenhisconduct andHurst’sdisciplinaryaction. Plaintiffs must provide “specific, nonconclusory allegations” linking their conduct to the defendants’ retaliatory acts. Spencer v. City of Catlettsburg, 506 F. App’x 392, 396 (6th Cir. 2012). “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts’” will not suffice. Harbin-Bey,420F.3d571,580(2005)(quotingGutierrezv.Lynch,826F.2d1534,153839 (6th Cir. 1987)); see also Murray, 84 F. App’x at 556 (requiring “concrete and relevant particulars”). Marshall-Sewell only provides conclusory assertions that Hurst retaliated against him. The complaint failsto state a claim of retaliation. D. The constitutional basis for Marshall-Sewell’s claims against defendants Holzschu and Austin, the hearing investigator, is less clear. He alleges that Holzschu did not “rereview[]” the charges with him as indicated on the misconduct report and that he “falsified documents . . ..” ECF No. 1 at PageID.7. Marshall-Sewell also asserts Austin was informed of the “due process violation [but] never triedto resolve[the] issue.” Ibid. The claims against both defendants must be dismissed. As explained above, MarshallSewell’sdueprocesschallengestohisdisciplinaryproceedingsfailtostateaclaim. Hisallegations againstHolzschuarise from the same challengeddisciplinaryproceedingandmeet the same fate. AsforAustin’sfailuretoresolvetheallegeddueprocessviolation,“liabilityunder§1983 must be based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act.’” Sheheev.Luttrell,199F.3d295,300(6thCir.1999)(citationomitted). Supervisoryliability willnotbeestablished“unlessthesupervisoreitherencouragedthespecificincidentofmisconduct orinsomeotherwaydirectlyparticipatedinit.” Ibid.(citationandquotationmarksomitted);see alsoFrazier,41F.App’xat764(requiringasection1983plaintiffpleadpersonalinvolvementby defendants in the constitutional violations). Therefore, Marshall-Sewell’s allegation that Austin was aware of Kennedy and Holzschu’s actions but failed to correct them is insufficient to state a claim. E. Finally, Marshall-Sewell has not alleged that he sustained a physical injury from his confinementinsegregation,andthereforehecannotrecoveranydamagesforpsychologicalinjury he might have sustained from the detention. See Powell v. Washington, 720 F. App’x 222 , 229 (6thCir.2017)(citingHarden-Bey,524F.3dat795-96);seealso42U.S.C.§1997e(e). MarshallSewell alleges that he did not eat for at least three days, but he did not allege any discomfort or other physical effects from that deprivation. In the absence of a physical injury, damages are not availabletohimforanymentalor emotioninjurieshesuffered. III. The plaintiff’s complaint does not set forth any cognizable claims. The PLRA, 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b), thereforerequirestheCourt todismissthecase summarily. Accordingly,it isORDEREDthat complaint isDISMISSED WITH PREJUDICE. It is further ORDERED that the plaintiff’s motion for appointment of counsel (ECF No. 3) is DENIED. s/David M.Lawson DAVIDM. LAWSON UnitedStatesDistrict Judge Date: January 16,2024