John Thompson v. Richard Stapleton , 403 F. App'x 986 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0763n.06
No. 09-1504 FILED
Dec 15, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOHN THOMPSON, aka John Thompson-Bey, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
RICHARD STAPLETON, JOANN RICCI; ) THE EASTERN DISTRICT OF
L. MCMILLIAN and JERRY HOFBAUER, ) MICHIGAN
)
Defendant-Appellees )
)
GLENDA WELLS; ROBIN PRATT; and )
HAROLD WHITE, )
)
Defendants. )
)
Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. John Thompson-Bey, proceeding pro se, appeals the district
court’s grant of summary judgment to various defendants in this 42 U.S.C. § 1983 action. We
review the district court’s decision de novo, and construe the facts in the light most favorable to
Thompson-Bey. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).
Thompson-Bey sued multiple prison officials in their official and individual capacities,
alleging that they deprived him of due process in connection with a June 24, 1996, prison
disciplinary hearing. The hearing arose after Thompson-Bey killed another inmate. Thompson-
No. 09-1504
Thompson-Bey v. Stapleton
Bey’s official-capacity claims seeking monetary relief are barred by the Eleventh Amendment. See
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989). And because Thompson-Bey has
been released from prison, there is no continuing violation, and thus his official-capacity claims for
declaratory relief are barred. See Banas v. Dempsey, 742 F.2d 277, 284-88 (6th Cir. 1984). In
addition, Thompson-Bey did not appeal the district court’s grant of summary judgment in favor of
Ricci and Stapleton in their individual capacities, so he has abandoned those claims. Boyd v. Ford
Motor Co., 948 F.2d 283, 284 (6th Cir. 1991).
We next consider Thompson-Bey’s individual-capacity claims against McMillian, who was
a prison investigator assigned to Thompson-Bey’s case. Thompson-Bey gave McMillian written
interrogatories for several witnesses and other questions to investigate. Thompson-Bey contends that
McMillian violated his due-process rights by delaying Thompson-Bey’s access to the responses to
those questions until after the disciplinary hearing. That claim is meritless; the minimal due-process
rights afforded a prisoner in disciplinary hearings do not include access to interrogatory responses.
See generally Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Moreover, Thompson-Bey had no
due-process right to confront or cross-examine witnesses, id. at 568, and was not even entitled to a
hearing investigator. See Love v. Farley, 925 F.2d 1464 (6th Cir. 1991) (unpublished); see also
Wolff, 418 U.S. at 570.
Thompson-Bey also argues that, because he was being held in administrative segregation
pending his disciplinary hearing, McMillian’s delay in providing the responses to his questions
prevented Thompson-Bey from preparing a defense. But Wolff requires advance notice of the
-2-
No. 09-1504
Thompson-Bey v. Stapleton
charges, not the evidence. See Wolff, 418 U.S. at 563-64. Thompson-Bey received the required
notice.
Thompson-Bey’s allegations against Hofbauer are likewise meritless. He argues that
Hofbauer, the prison warden, denied his step-II grievance against McMillian, and thereby
“knowingly approved and acquiesced” in McMillian’s unconstitutional conduct. But there was no
unconstitutional conduct, so this claim fails. And Hofbauer’s denial of Thompson-Bey’s
administrative grievance is otherwise not actionable under § 1983. See Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999).
The district court’s judgment is affirmed.
-3-