Steele v. Neff

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sean M. Steele

Plaintiff,

v. Case No. 2:18-cv-1503

Lt. Nicholas Neff, et al.,

Defendants.

ORDER

This is an action filed pursuant to 42 U.S.C. §1983 by Sean M.

Steele, an inmate currently incarcerated at the Trumbull

Correctional Facility, against Lt. Nicholas Neff, Lt., Doug Byrd,

Brandi Glore, Caroline Harris, and Darryl May, who are employees of

the Pickaway Correctional Institution where plaintiff was formerly

incarcerated. In his amended complaint, plaintiff alleged that

from June 29, 2018, through July 18, 2018, he was placed in the

Transitional Programming Unit (“TPU”) while the Rules Infraction

Board (“RIB”) investigated a misconduct report regarding “dealing.

On July 18, 2018, the RIB held a hearing, at which RIB Chairperson

Lt. Byrd found plaintiff not guilty of “dealing.”

Plaintiff alleged that he was again taken to the TPU on July

20, 2018, as a result of a report prepared by Lt. Neff stating that

plaintiff was involved in a fight in the prison yard which occurred

on July 8, 2018. Plaintiff alleged that he was in the TPU at the

time of the fight, and that therefore Lt. Neff’s report must be

false and in retaliation for plaintiff being found not guilty of

“dealing.” On an RIB disposition form dated July 31, 2018, RIB

Chairperson Lt. Byrd found plaintiff not guilty of fighting but

guilty of engaging in unauthorized group activity. The form

indicated that plaintiff offered a defense which was not believed

by the RIB. Lt. Byrd directed that plaintiff’s placement in the

TPU be continued for thirty days, and requested a review of

plaintiff’s security level and a transfer.

Plaintiff alleged that although he was provided with a copy of

the disposition of the RIB proceeding, that the document did not

provide a written statement of the evidence relied on. Plaintiff

alleged that he appealed this decision, which was upheld by Daryl

May, the warden’s assistant. Plaintiff alleged that Case Manager

Brandi Glore conducted a security review following the RIB

disposition and concluded that plaintiff’s security level should be

increased from two to three. Plaintiff alleged that he did not

receive the paperwork necessary to appeal this decision in a timely

fashion, and that Unit Manager Harris approved the security level

increase before receiving plaintiff’s appeal. On August 16, 2018,

sixteen days after the RIB disposition, plaintiff was transferred

to the Trumbull Correctional Institution.

Plaintiff claims that defendants’ failure to provide him with

a written statement of the evidence relied on for the disciplinary

action violated his due process rights under the Fourteenth

Amendment. He further alleges that this due process violation

resulted in his continued placement in the TPU for an additional

thirty days, his being labeled as a gang leader, the loss of his

prison job, an increase in his security classification, his

transfer to a higher security prison, economic hardship from

bringing this action, and a potential impact on his parole

eligibility.

On April 17, 2019, defendants moved to dismiss the complaint

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on several grounds. They argued that: plaintiff’s claim for

declaratory relief is moot; his official capacity claims are barred

by the Eleventh Amendment; plaintiff did not meet the requirements

for punitive damages; plaintiff’s claims are barred by qualified

immunity; and the complaint fails to state a claim for which relief

can be granted. On January 2, 2020, the magistrate judge issued a

report and recommendation which addressed the last of these

arguments. The magistrate judge concluded that plaintiff’s

complaint failed to allege a procedural due process claim which

would entitle plaintiff to relief, and recommended that defendants’

motion to dismiss be granted on that ground. This matter is now

before the court for consideration of the report and recommendation

and plaintiff’s January 13, 2020, objections.

I. Standards of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

Courts ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6) construe the complaint in a light most favorable to the

plaintiff, accepting all well-pleaded allegations in the complaint

as true, and determining whether plaintiff undoubtedly can prove no

set of facts in support of those allegations that would entitle him

to relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

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Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

a motion to dismiss, the “complaint must contain either direct or

inferential allegations with respect to all material elements

necessary to sustain a recovery under some viable legal theory.”

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

II. Plaintiff’s Objections

As the magistrate judge correctly noted, to establish a

procedural due process violation under §1983, plaintiff must show

that the state deprived him of a constitutionally protected

interest in life, liberty or property without due process of law.

Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006). In

the prison context, “[t]he “Due process Clause does not protect

every change in the conditions of confinement having a substantial

adverse impact[.]’” Bazzetta v. McGinnis, 430 F.3d 795, 804 (6th

Cir. 2005)(quoting Sandin v. Conner, 515 U.S. 472, 478 (1995)).

Rather, a prisoner is entitled to Fourteenth Amendment procedural

due process only when a protected liberty interest is at issue.

Ford v. Harvey, 106 F. App’x 397, 399 (6th Cir. 2004).

Plaintiff first argues that the magistrate judge did not

consider his argument that Lt. Byrd was not an unbiased decision

maker. However, Lt. Byrd’s role as a member of the RIB which

rendered the decision on the alleged violation conduct is not a

basis for holding him personally liable for a due process

violation. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.

1999)(prison official’s role in ruling on administrative grievances

not sufficient for liability under §1983). This objection is not

well taken.

Plaintiff next argues that under Wolff v. McDonnell, 418 U.S.

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539 (1974), he was entitled to a written statement of the evidence

relied upon and the reason for any action taken as a result of a

disciplinary hearing. He also reiterates his argument that he

could not have been involved in the prison yard fight because he

was in the TPU at the time, and therefore the conduct report must

be false.

At the outset, the court notes that, even assuming the

procedural requirements discussed in Wolff are applicable in this

case (as discussed below, the court concludes they are not), the

amended complaint and the attached documents fail to allege facts

showing that the disposition report was procedurally deficient in

explaining the evidence relied on, or that the conduct report was

false for the reason alleged by plaintiff. The conduct report and

the RIB’s disposition are attached to the amended complaint at

Docs. 9-2 and 9-3. See Amini v. Oberlin College, 259 F.3d 493, 502

(6th Cir. 2001)(in evaluating a motion to dismiss, a court can

consider exhibits attached to the complaint).

In response to the disposition form’s request for a statement

of the facts which explain the RIB’s decision, it was stated: “The

Board believes the conduct report to be true and factual as

written.” Doc. 9-3. The conduct report, attached to the amended

complaint as Doc. 9-2, states that the inmates who participated in

the fight were interviewed, that they admitted to their involvement

in the fight, and that they indicated that the fight was over the

leadership of the Bloods gang and contraband being brought in by an

Aramark staff member. The report indicates that Lt. Neff reviewed

video footage of the fight. The conduct report does not state that

plaintiff was present during the altercation in the yard. In fact,

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Lt. Byrd found plaintiff not guilty of actually participating in

the fight; plaintiff was only found guilty of engaging in

unauthorized group activity. As support for the latter charge, the

conduct report indicated that prior to his placement in the TPU,

plaintiff had Inmate Reid “move money and unknown contraband over

the GTL phone system for an Aramark employee to bring into Reid and

turn over to” plaintiff. The report stated that plaintiff was

involved in a dispute with Inmate Mayes over leadership of the

Bloods, which caused them to split into two groups, and that when

plaintiff went to the TPU, Inmate Mayes saw an opportunity to take

control of the leadership of the Bloods and their contraband.

Even assuming that the amended complaint is sufficient to

allege procedural deficiencies in the RIB proceeding, the court

agrees with the magistrate judge’s conclusion that Wolff does not

control this case. As the magistrate judge correctly observed, in

Washington v. Harper, 494 U.S. 210, 220 (1990), the Supreme Court

clarified that the procedural protections discussed in Wolff only

apply to the extent necessary to protect substantive rights such as

liberty interests. Under Sandin, the only liberty interest a

prisoner may claim under §1983 is the freedom from restraint which

“imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” 515 U.S. at

484. The mere failure to follow proper state prison procedures is

insufficient to establish an infringement of a liberty interest.

Grinter v. Knight, 532 F.3d 567, 574 (6th Cir. 2008). Plaintiff

argues in his objections that the alleged violation of his

constitutional right to procedural due process is itself sufficient

to constitute “atypical and significant hardship.” However, Sandin

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makes it clear that there is no constitutionally protected due

process violation unless the process complained of results in

conditions of confinement which are atypical and pose a significant

hardship.

Plaintiff’s continued confinement in the TPU (which was

actually for an additional seventeen days from July 31, 2018, the

date of the RIB decision, and plaintiff’s transfer to another

institution on August 16, 2018, not for the thirty days ordered in

the decision) is insufficient to implicate a liberty interest. The

Sixth Circuit has held that confinement in administrative

segregation does not impose an “atypical or significant hardship”

or implicate a protected liberty interest. See Jones v. Baker, 155

F.3d 810, 812 (6th Cir. 1998)(two-and-one-half-year stay in

administrative segregation did not implicate a protected liberty

interest); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir.

1997)(administrative segregation does not impose atypical or

significant hardship). The fact that plaintiff was held in the TPU

for seventeen days following the RIB’s decision did not pose an

“atypical or significant hardship.”

Plaintiff also alleges that the RIB decision resulted in him

being labeled as a gang member. This also did not implicate a

liberty interest. See Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th

Cir. 2005)(inmate’s classification as a member of a security threat

group without a hearing was not a due process violation); Rice v.

Turner, No. 4:17CV2684, 2018 WL 3067767, at *5 (N.D. Ohio June 21,

2018)(designation of inmate as a gang member resulting in an

increase in his security classification and transfer was not a

protected liberty interest).

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Plaintiff further claims that the RIB decision resulted in the

loss of his prison employment. However, an inmate has no

constitutionally protected interest in prison employment, Newsom v.

Norris, 888 F.2d 371, 374 (6th Cir. 1989), or in a particular job

assignment, Anderson-Bey v. Ellis, 886 F.2d 1315 (table), 1989 WL

113854 (6th Cir. 1989). As to plaintiff’s allegation that his

parole eligibility may be affected by the RIB decision, plaintiff

has no constitutional right to be released before the expiration of

a valid sentence, Greenholtz v. Inmates of Nebraska Penal and Corr.

Complex, 442 U.S. 1, 7 (1979), and the State of Ohio has not

created a liberty interest in parole eligibility, as it has a

completely discretionary parole system, Swihart v. Wilkinson, 209

F. App’x 456, 458 (6th Cir. 2006).

Plaintiff also alleges that the RIB decision led to the

decision to increase his security classification from two to three

and his transfer to another institution. A transfer to a higher

security classification or to another prison does not trigger a

liberty interest because a prisoner has no constitutional right to

be incarcerated in a particular prison or held in a specific

security classification. Olim v. Wakinekona, 461 U.S. 238, 245

(1983); Harbin-Bey, 420 F.3d at 577. The change in plaintiff’s

security classification and his transfer to another institution do

not implicate a liberty interest subject to procedural due process

protection. In addition, the Due Process Clause does not require

a hearing prior to a transfer to another institution. Meachum v.

Fano, 427 U.S. 215, 225-26 (1976). This further undermines

plaintiff’s claim that his transfer was invalid due to procedural

deficiencies in his RIB hearing, as no pre-transfer hearing was

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required.

Plaintiff notes that he has demanded a trial by jury. He

argues that under the Seventh Amendment, he is entitled to a jury

trial on his claims. The fact that plaintiff has demanded a jury

trial does not preclude dismissal of his complaint for failure to

state a claim for relief under Rule 12(b)(6). Plaintiff also

objects to the magistrate judge’s recommendation that the court

certify pursuant to 28 U.S.C. §1915(a)(3) that an appeal of this

court’s order adopting the report and recommendation would not be

taken in good faith and deny plaintiff leave to appeal in forma

pauperis. The court agrees with this recommendation, and

plaintiff’s objection in that regard is denied.

III. Conclusion

For the foregoing reasons, the court agrees with the report

and recommendation. The court adopts the report and recommendation

(Doc. 32). Plaintiff’s objections (Doc. 33) are denied. The court

grants the defendants’ motion (Doc. 22) to dismiss the amended

complaint for failure to state a claim for which relief may be

granted. For the foregoing reasons, the court certifies pursuant

to 28 U.S.C. §1915(a)(3) that an appeal from this order adopting

the report and recommendation would not be taken in good faith, and

the court denies plaintiff leave to appeal in forma pauperis. The

clerk shall enter judgment dismissing this case.

Date: March 5, 2020 s/James L. Graham

James L. Graham

United States District Judge

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