UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

JERRY ANDERSON,

Plaintiff, Case No. 2:21-cv-124

v. Hon. Hala Y. Jarbou

C. NEWTON,

Defendant. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under

. Under the Prison Litigation Reform Act,

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.

(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,

(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,

(1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim. Discussion Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. The events about which he complains, however, occurred at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Plaintiff sues Assistant Resident Unit Manager C. Newton. Plaintiff alleges that on June 22, 2020, Corrections Officer Vieau wrote a misconduct ticket on Plaintiff for “interference with the administration of rules.” In the ticket, Officer Vieau stated that he had observed Plaintiff, who was on room restriction, in the card room

without authorization. On June 26, 2020, Defendant read the report to Plaintiff, who objected that the ticket failed to adequately describe any sanctions authorized by policy, which violated MDOC Policy Directive 03.03.105 § KKK, attachment D. Defendant then stated: [T]he description of the violation meets the criteria of the charge, prisoner’s on unemployable status (“OO” status) shall not have access to more leisure activities than prisoners working full time. Prisoner Anderson began “OO” on 06/11/2020 for 30 days and the card room is a leisure activity, therefore prisoner is guilty of the charge. (ECF No. 1, PageID.4-5.) Plaintiff filed an appeal and was granted a rehearing. On July 21, 2020, at the conclusion of the rehearing, Plaintiff was found not guilty because he was correct that room restriction (OO) was not a sanction. However, Plaintiff had already served his sanction of five days on toplock, during which he could not leave his cell or use his television, radio, tape player, or portable media player. Plaintiff claims that his due process rights were violated by Defendant Newton at the misconduct hearing when she refused to dismiss the misconduct report despite the fact that it was erroneous. Plaintiff seeks compensatory and punitive damages. Failure to state a claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly,

; Ashcroft v. Iqbal,

(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly,

. “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.” Iqbal,

. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,

(quoting Twombly,

). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal,

(quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

, 470–71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under

28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). To state a claim under

, 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,

(1988); Street v. Corr. Corp. of Am.,

(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,

(1994). Due process Plaintiff asserts a violation of the procedural protections of the Fourteenth Amendment’s Due Process Clause. A prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions implicated any liberty interest. A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the sanction “will

inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner,

(1995). Under Michigan Department of Corrections Policy Directive 03.03.105, ¶ B (eff. July 1, 2018), a Class I misconduct is a “major” misconduct and Class II and III misconducts are “minor” misconducts. The policy further provides that prisoners are deprived of good time or disciplinary credits only when they are found guilty of a Class I misconduct. (See Policy Directive 03.03.105, ¶ AAAA). Plaintiff was charged with Interference with the Administration of Rules, which is a class II misconduct. (See Policy Directive 03.03.105B.) Plaintiff was not subject to the denial of good time or disciplinary credits as a result of his Class II misconduct convictions. The Sixth

Circuit routinely has held that misconduct convictions that do not result in the loss of good time are not atypical and significant deprivations and therefore do not implicate due process. See, e.g., Ingram v. Jewell,

(6th Cir. 2004), overruled on other grounds by Maben v. Thelen,

(6th Cir. 2018); Carter v. Tucker,

(6th Cir. 2003); Green v. Waldren, No. 99-1561,

, at *2 (6th Cir. June 23, 2000); Staffney v. Allen, No. 98-1880,

, at *2 (6th Cir. Aug. 12, 1999). A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner,

(1995). Moreover, a few days on toplock does not amount to an atypical or significant hardship. See Graham v. Chicowski, et al., No. 18-2049,

(6th Cir. May 3, 2019); Green v. Waldren, No. 99-1561,

, at *2 (6th Cir. June 23, 2000); Percival v. Stuhler, et al., No. 16-0083,

, at *5 (W.D. Mich. Aug. 31, 2016). Because Plaintiff did not suffer an infringement of any liberty interest as a result of the minor misconduct

charge, he fails to state a claim against Defendant. See Green,

, at *2 (“Green had no due process liberty interest in the minor misconduct hearing because he did not allege any punishment that affected the duration of his confinement, or that constituted an atypical and significant hardship.”); Staffney v. Allen, No. 98-1880,

, at *2 (6th Cir. Aug. 12, 1999) (“Staffney suffered no loss of good time credits as a result of his minor misconduct conviction and the sanctions he received do not represent a liberty interest recognized by the constitution.”). Therefore, Plaintiff’s complaint is properly dismissed. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under

(e)(2) and 1915A(b), and 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

(a)(3). See McGore v. Wrigglesworth,

(6th Cir. 1997). For the same reasons the Court concludes that Plaintiff’s claims are properly dismissed, the Court also concludes that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States,

(1962). Accordingly, the Court certifies that an appeal would not be taken in good faith. This is a dismissal as described by

(g). A judgment consistent with this opinion will be entered.

Dated: September 22, 2021 /s/ Hala Y. Jarbou HALA Y. JARBOU UNITED STATES DISTRICT JUDGE