holding that the prisoner’s 8-year confinement in segregation was of “atypical duration” and thus “created a liberty interest that triggered his right to due process”
How later courts described this case
- holding that the prisoner’s 8-year confinement in segregation was of “atypical duration” and thus “created a liberty interest that triggered his right to due process”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ROBERT S. COMER, Case No. 1:21-cv-799
Plaintiff,
Dlott, J.
vs Bowman, M.J.
BRIAN BAKER, et al., REPORT AND
Defendants. RECOMMENDATION
Plaintiff, an inmate at the Warren Correctional Institution (WCI), brings this civil rights
action under 42 U.S.C. § 1983 against defendants Brian Baker, Tyra Parker, Officer Miller, and
Vencot Brown. By separate Order, plaintiff has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review
of the complaint, as amended, determine whether the complaint, or any portion of it, should be
dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such relief. See Prison
Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as
frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or
law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d
1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a legal interest which clearly does not
exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations
are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at
32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are
“fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d
468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at
470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to
state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
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(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
Plaintiff alleges that his due process rights were violated in connection with at Rules
Infraction Board (RIB) hearing and appeal. (Doc. 1, Complaint at Page 17). According to
plaintiff, on January 21, 2021 at WCI, plaintiff received three rules violations and was escorted
to administrative segregation. (Id. at PageID 18). Plaintiff alleges that on February 3, 2021,
defendant Officer Miller falsely indicated that plaintiff did not want to attend his RIB hearing.
As detailed in the complaint, plaintiff further alleges that he subsequently received paperwork
indicating that he refused to attend the hearing. He claims that he unsuccessfully appealed the
result of the RIB hearing to defendants Tyra Parker, Brian Baker, and Vencot Brown. Plaintiff
claims that he also sent paper and electronic kites to Baker and Parker inquiring about his
appeal, but that defendants incorrectly concluded the appeal was untimely. As relief, plaintiff
seeks injunctive relief. (Id. at PageID 24).
The complaint should be dismissed because plaintiff has failed to state an actionable
claim under § 1983 based on allegations showing that he was deprived of “a right secured by
the United States Constitution or a federal statute.” See Spadafore v. Gardner, 330 F.3d 849,
852 (6th Cir. 2003).
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Plaintiff has failed to state a due process claim in connection with the RIB proceedings,
because the challenged disciplinary actions did not amount to a deprivation of a
constitutionally protected liberty interest. In Sandin v. Conner, 515 U.S. 472 (1995), the
Supreme Court held that the Fourteenth Amendment confers on prisoners only a “limited”
liberty interest “to freedom from restraint which . . . imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life,” or which “will inevitably
affect the duration of his sentence.” Sandin, 515 U.S. at 484, 487; see also Jones v. Baker, 155
F.3d 810, 812 (6th Cir. 1998); Williams v. Wilkinson, 51 F. App’x 553, 556 (6th Cir. 2002).
The Sixth Circuit has held that confinement in segregation generally does not rise to the level
of an “atypical and significant” hardship implicating a liberty interest except in “extreme
circumstances, such as when the prisoner’s complaint alleged that he is subject to an indefinite
administrative segregation” or that such confinement was excessively long in duration. Joseph
v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (citing Harden-Bey v. Rutter, 524 F.3d 789,
795 (6th Cir. 2008)) (emphasis in original); see also Harris v. Caruso, 465 F. App’x 481, 484
(6th Cir. 2012) (holding that the prisoner’s 8-year confinement in segregation was of “atypical
duration” and thus “created a liberty interest that triggered his right to due process”). Cf.
Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (ruling that an inmate’s transfer to Ohio’s
“supermax” prison “imposes an atypical and significant hardship” given the combination of
extreme isolation of inmates, prohibition of almost all human contact, indefinite duration of
assignment, and disqualification for parole consideration of otherwise eligible inmates).
Here, plaintiff has not alleged that the challenged disciplinary proceeding resulted in the
lengthening of his prison sentence, the withdrawal of good-time credits, or the deprivation of any
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necessities of life. Moreover, plaintiff has not alleged any facts to suggest that he was subjected
to a lengthy disciplinary placement amounting to an atypical or significant hardship that would
trigger constitutional concerns. Accordingly, because plaintiff does not have a protected liberty
interest under the circumstances alleged herein, any claim against defendants for their conduct in
the disciplinary proceedings fails to state a cognizable federal claim under the Fourteenth
Amendment’s Due Process Clause.
The complaint should also be dismissed to the extent that plaintiff claims defendants
failed to respond to his kites/grievances or take corrective action with respect to the RIB
proceedings. “Prison inmates do not have a constitutionally protected right to a grievance
procedure.” Miller v. Haines, No. 97–3416, 1998 WL 476247, at *1 (6th Cir. Aug.03, 1998)
(citations omitted). Prison officials whose only roles “involve their denial of administrative
grievances and their failure to remedy the alleged [unconstitutional] behavior’” cannot be liable
under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Nor does a prison official’s
alleged failure to adequately investigate claims of misconduct rise to the level of
“encouragement” that would make the official liable for such misconduct. Knop v. Johnson, 977
F.2d 996, 1014 (6th Cir. 1992); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Therefore, to the extent that plaintiff seeks to hold any defendant liable for their failure to
respond or investigate his kites/grievances, plaintiff has failed to state a claim upon which relief
may be granted.
Accordingly, in sum, the complaint should be dismissed for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
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IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s complaint, as amended, be DISMISSED with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ROBERT S. COMER, Case No. 1:21-cv-799
Plaintiff,
Dlott, J.
vs Bowman, M.J.
BRIAN BAKER, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
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