Gibbs v. Hopkins

• Decision Date: 30 April 1993
• Docket Number: No. 92-1547,92-1547
• Citation: 10 F.3d 373
• Parties: Paul D. GIBBS, Plaintiff-Appellant, v. Robert J. HOPKINS; Pat Leavenworth, Defendants-Appellees. . On Briefs
• Court: U.S. Court of Appeals — Sixth Circuit

Page 373

10 F.3d 373

Paul D. GIBBS, Plaintiff-Appellant, v. Robert J. HOPKINS; Pat Leavenworth, Defendants-Appellees.

No. 92-1547.

United States Court of Appeals Sixth Circuit.

On Briefs April 30, 1993.

Decided Nov. 22, 1993.

Paul D. Gibbs, pro se.

Julia R. Bell (briefed), Office of the Atty. Gen., Corrections Div., Lansing, MI, for defendants-appellees.

Before: MERRITT, Chief Judge; and KEITH and SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge.

Plaintiff Paul Gibbs, a pro se Michigan prisoner, appeals the judgment of the District Court dismissing his civil rights action for damages filed under 42 U.S.C. Sec. 1983. Gibbs alleges retaliation by defendant prison officials Robert J. Hopkins and Pat Leavenworth for his successful assistance of other prisoners in bringing their own civil rights suits against prison officials. For the following reasons, we affirm in part and reverse in part the summary judgment of the District Court.

I.

Gibbs was a prisoner at the Chippewa Correctional Facility in Kincheloe, Michigan. In late 1990, Gibbs was placed in administrative segregation for possession of contraband. On April 2, 1991, Hopkins recommended that Gibbs be reclassified to "Level IV of the general prison population." The facility's Security Classification Committee, of which defendants are members, accepted Hopkins' recommendation two days later and filed an order for his release. Gibbs remained confined in segregation, apparently due to lack of bed space. "Level IV general population," to which Gibbs would have been returned, is usually full due to the "trade" of prisoners from other facilities in order to utilize fully the beds in Michigan's crowded prisons. This results in a lengthy wait for those being reclassified from segregation.

On April 8, Gibbs threatened a nurse, apparently in an attempt to receive certain prescription medication, and was given 30 days' detention at a hearing on April 12. This detention for serious misconduct ended May 12, but Gibbs was not released from segregation. Gibbs did not receive his mandatory monthly review of classification status during June. On July 12, Hopkins recommended that Gibbs be "continued" in segregation, but suggested he "shall be released as soon as all is balanced out." The Committee accepted that recommendation to continue the confinement, concluding that Gibbs should remain in segregation due to his "serious misconduct." However, the Committee determined after Gibbs' August 12 review that he should be reclassified back to general population pending available bed space. Gibbs was not returned to general population until October 18, 1991.

In his procedural due process claim, Gibbs argues that he was never reclassified to segregation following the completion of his 30-day detention on May 12, that such reclassification was required, and that failure to do so deprived him of a liberty interest without due process. He cites state regulations requiring that certain procedures be followed before a prisoner is classified to segregation. It is undisputed that Gibbs did not receive a reclassification hearing or order after his 30-day detention ended on May 12. Gibbs filed a Step One grievance against defendant Hopkins.

Gibbs raises a substantive retaliation claim as well. It is apparently not disputed that he has completed a legal assistant/paralegal training course, and that he has successfully used his skills to assist at least one other prisoner, Benito Perez, to vindicate his rights in a Sec. 1983 suit. A judgment in Perez' favor was entered September 22, 1992. Defendants Hopkins and Leavenworth were also defendants in that suit, although they were dismissed in the September 22 Order. Gibbs asserts that his continued incarceration in segregation during the pendency of Perez' suit was due to his efforts on Perez' behalf. He requested discovery concerning the actual availability of bed space during the months following the Committee's reclassification decision, in an effort to demonstrate that lack of bed space was a pretext for continuing his segregation. This discovery was never permitted. Gibbs further asserts that his June 1991 monthly review was not missed inadvertently, as defendant Hopkins claims, but intentionally, again in retaliation for his jailhouse lawyering. He cites as evidence initialed door cards from his cell indicating that Hopkins visited six times during June, contradicting Hopkins' claim to have taken a vacation during that month. Requested discovery concerning the initials on the cards, and details as to Hopkins' whereabouts during June, was not permitted.

The magistrate judge recommended that the claims be dismissed on the basis of defendants' Rule 56 motion for summary judgment. He found that Gibbs remained in segregation throughout his 30-day detention, and that reclassification never occurred. Since reclassification did not take place, a hearing was unnecessary. Furthermore, even if a reclassification did occur and the state-mandated procedures were triggered, federal constitutional norms were not violated. Finally, even if the prisoner did not receive all the due process protections required under federal constitutional law, he must still affirmatively plead and show the inadequacy of state-instituted remedies. Gibbs did not specifically allege that Michigan law provided an inadequate remedy.

As to Gibbs' retaliation claims, the magistrate judge recommended they be dismissed, concluding that there is no constitutionally protected right to assist another prisoner in petitioning the government for redress of greivances. A retaliation claim requires that action be taken against a plaintiff for exercising a constitutionally protected right; in the absence of such a right, there can be no unlawful retaliation.

II.

We agree with the District Court that confinement in segregation does not independently violate the Due Process Clause: "As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).

The Supreme Court has held, however, that state law may create protectable liberty interests. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461-63, 109 S.Ct. 1904, 1909-10, 104 L.Ed.2d 506 (1989). A state creates a protected liberty interest "by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). As we summarized the rule in Parate v. Isibor, 868 F.2d 821 (6th Cir.1989):

In determining whether state-enacted rules create a protected liberty interest, the key is "whether or not the state has imposed 'substantive limitations' on the discretion of [officers] ... or, in other words, whether the state has used language of an unmistakably mandatory character."

Id. at 832 (quoting Washington v. Starke, 855 F.2d 346, 349 (6th Cir.1988)).

Classification of prisoners is generally "not a punitive or disciplinary sanction." Mich.Admin.Code R. 791.4401(1) (1979) & Supp. (1989). It ranges from community status at the low end to segregation at its most restrictive. Classification to the lower levels rests on such discretionary considerations as "maintenance of control and order," "the protection of the public," and "the safety of others." Id. at subpars. (a), (c), (e). Confinement in segregation, however, is a serious punishment curtailing or eliminating entirely many of the amenities afforded prisoners in the general population. Consequently, its imposition is governed by stricter standards, found at Mich.Admin.Code R. 791.4405:

(1) Segregation may be imposed only for 1 or more of the following reasons:

(a) A prisoner demonstrates an inability to be managed with general population privileges.

(b) A prisoner needs protection from other prisoners.

(c) A prisoner is a serious threat to the physical safety of staff or other prisoners or to the good order of the facility.

(d) A prisoner is a serious escape threat.

(e) A prisoner is under investigation by outside authorities for suspected felonious behavior.

(Emphasis added.) Furthermore, "The determination as to whether a prisoner shall be classified to segregation shall be made by the institution's security classification committee ... based upon ... the facts as found at a hearing...." Id. at par. (3) (emphasis added). This hearing requirement may be satisfied by a major misconduct hearing, id. at par. (4). In addition, "[a] prisoner who is classified to segregation shall be interviewed and have his or her security status reviewed at least monthly. " Id. at par. (5) (emphasis added). Finally, Policy Directive PD-DWA-60.01 (8-31-87) provides at page 13: "Reclassification to administrative segregation based solely on a major misconduct guilty finding may be done using the Security Reclassification Notice (CSO-423); an additional hearing is not required." This regulation may mean that Gibbs was entitled to a hearing after he was required to remain in segregation.

Assuming arguendo that Gibbs is correct that the District Court erred in concluding that it was not necessary to reclassify Gibbs because he never left segregation we still do not see that a procedural due process violation has occurred.

The District Court correctly concluded that Gibbs' claim is barred by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), as well as by this court's holding in Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), cert. denied, 469 U.S. 834, 105 S.Ct. 125, 83 L.Ed.2d 67 (1984). Parratt involved a Nebraska prisoner who was deprived of a mail-order hobby kit by prison officials. The Supreme Court held...