981 F.2d 880 (6th Cir. 1992), 92-1446, Newell v. Brown

Docket Nº:92-1446.
Citation:981 F.2d 880
Party Name:Ricky NEWELL, Plaintiff-Appellant, v. Robert BROWN, Jr., et al., Defendants-Appellees.
Case Date:December 11, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 880

981 F.2d 880 (6th Cir. 1992)

Ricky NEWELL, Plaintiff-Appellant,

v.

Robert BROWN, Jr., et al., Defendants-Appellees.

No. 92-1446.

United States Court of Appeals, Sixth Circuit

December 11, 1992

Argued Nov. 10, 1992.

Rehearing and Rehearing En Banc

Denied Feb. 9, 1993.

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Timothy M. Holloway (argued, briefed), Davis, Culpepper & Saroki, Detroit, MI, for plaintiff-appellant.

Linda M. Olivieri (argued, briefed), Office of the Atty. Gen., Corrections Div., Lansing, MI, for Robert Brown, Jr., Dan Bolden, David Trippett, A.J. Jackson, F. Lavigne.

Michael L. Murray, Steven R. Ross (argued, briefed), Charles Tiefer, U.S. House of Representatives, Office of the Clerk, DC, Linda M. Olivieri, Office of Atty. Gen., Corrections Div., Lansing, MI, for William Schuette.

Before: KEITH and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is an appeal from a judgment for the defendants--a congressman and various Michigan prison officials--in a civil rights action brought by a state prisoner who is serving three life sentences for murder. The plaintiff prisoner's security classification was reduced at least once during his confinement, but it was ultimately upgraded, and the plaintiff was transferred from a medium security institution to one for prisoners with higher security levels, after the daughter of one of the plaintiff's victims prevailed upon her congressman to write a letter requesting the Michigan Department of Corrections to reassign the plaintiff.

Upon de novo review of contested portions of a report and recommendation submitted by Magistrate Judge Lynn V. Hooe, Jr., the district court (Duggan, J.) concluded, as had the magistrate judge, that the plaintiff could not show that his reclassification and transfer represented a violation of his constitutional rights. We agree with this conclusion, and we shall affirm the district court's judgment.

I

The plaintiff, Ricky Newell, was convicted on three counts of first-degree murder in the late 1970s. He received three mandatory life sentences, and he has been incarcerated in the Michigan prison system ever since.

Although the plaintiff was originally held in "close custody," according to his complaint, his custody level was reduced to "medium" in January of 1988. He was then transferred to the Thumb Correctional Facility, a medium-security institution at Lapeer, Michigan.

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In July of 1989 a local newspaper ran a story reporting, among other things, that the plaintiff had escaped from confinement twice prior to his murder convictions; that a co-defendant in the plaintiff's murder trial had confessed to shooting the three victims in the face at the plaintiff's urging; and that relatives of the victims were outraged that the plaintiff was not being kept in a maximum security prison.

Shortly after the appearance of the newspaper article, defendant Bill Schuette, who was then the Member of Congress from the Tenth Congressional District of Michigan, sent a letter to defendant Robert Brown, Jr., the Director of the Michigan Department of Corrections, in which he said this:

"One of my constituents recently brought to my attention that the convicted murderer of her mother has been transferred from the maximum-security Riverside Correctional Facility in Ionia to the medium-security Thumb Regional Correctional Facility in Lapeer. The inmate to whom I refer is Ricky N. Newell.

Newell has a history of escapes, including a break from the Michigan Training Unit in Ionia, where he was serving time for armed robbery, and the Genesee County Jail. Despite his escape from the Michigan Training Unit and the subsequent additional prison time, Newell was released on 'good time' before serving his minimum sentence. It was while on parole after his release that he murdered Shirley Parvin and two others during a robbery of the Sunshine Food Store in Flushing.

It is my opinion, and I believe the opinion of the citizens of Michigan, that anyone convicted of murdering another human being in the first degree should never be transferred out of a maximum-security facility, regardless of the reason. I feel especially strong about this in Newell's case.

Bob, despite Corrections' policy, I am asking that because of the severity of Ricky Newell's crimes, and his record of prior escapes from prison, that you facilitate his immediate return to a maximum-security facility. Your attention to this matter would be greatly appreciated.

Thank you in advance for your cooperation in this matter."

Copies of the letter went to the Governor of Michigan and to defendant David Trippett, the warden of the Thumb facility.

On August 2, 1989, following a security classification hearing at which the plaintiff argued that he was not a threat to the public, the plaintiff's security level was increased from "medium" to "close." The classification hearing officers (the deputy warden and assistant deputy warden for custody, both of whom are also defendants in this action) recommended that the plaintiff's security level be increased "for the protection of the general public as [the plaintiff] would pose less of an escape risk." In conjunction with the reclassification the plaintiff was transferred to the State Prison of Southern Michigan at Jackson. There he was subsequently reclassified to a lower level, but he continued to be housed in the "close" security section of the Jackson facility.

The plaintiff commenced administrative grievance proceedings in October of 1989. His grievance was rejected at every stage. In June of 1990, however, a field investigator with the Office of Legislative Corrections Ombudsman recommended to the deputy director of the corrections department, defendant Dan Bolden, that the plaintiff be transferred to a medium custody level facility. The investigator's recommendation--which stated that "[t]he real reason [the plaintiff] was transferred appears to have been Congressman Schuette's letter and a 7/8/89 newspaper article which expressed the victim's family [sic] outrage at his TCF placement"--was not followed. The defendant was still in close custody at Jackson when he commenced his lawsuit in August of 1990.

Filed originally in the United States District Court for the Western District of Michigan, the case was transferred to the Eastern District. There, through counsel, the plaintiff filed a comprehensive amended complaint. The state defendants responded by moving for summary judgment.

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Congressman Schuette moved for dismissal on jurisdictional grounds and for failure to state a claim. The plaintiff has perfected a timely appeal from an order in which the...

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