# Steele v. Neff

> District Court, S.D. Ohio · March 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10374993

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374993. Public record. Not legal advice.