UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BILAL MUHAMMAD,

Plaintiff, CASE NO. 15-CV-11769

v. DISTRICT JUDGE NANCY G. EDMUNDS

MAGISTRATE JUDGE PATRICIA T. MORRIS

J.S. WALTON,

POTTS,

B. BROWN, and

HARKNESS,

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON DEFENDANTS’ MOTION TO DISMISS

(Doc. 15)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that the motion be 

GRANTED.

II. REPORT

A. Introduction

On May 15, 2015, Plaintiff Bilal Muhammad filed a pro se prisoner civil rights 

complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 

2d 619 (1971).1 District Judge Nancy G. Edmunds granted Plaintiff’s application to proceed 

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A Bivens action is a “judicially created damages remedy designed to vindicate violations of constitutional rights 

by federal actors.” Yeager v. General Motors Corp., 265 F.3d 389, 398 (6th Cir. 2001). It is “the federal analog 

to suits brought against state officials under . . . 42 U.S.C. § 1983.” Hartman v. Moore, 547 U.S. 250, 255 n.2, 

126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).

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without prepayment of fees and referred this matter to the undersigned magistrate judge for all 

pretrial proceedings pursuant to 28 U.S.C. § 636(b). (Docs. 4, 5.) 

Plaintiff is currently confined at the Federal Correctional Institution in Milan (“FCIMilan”). (Pl. Compl. Doc. 1 ¶ 4.) Defendants are FCI-Milan Warden J.S. Walton (“Walton”), 

disciplinary hearing officer Lieutenant Mary Potts (“Potts”), Unit Disciplinary Committee 

(“UDC”) chairman Bryce Brown (“Brown”), and secretary Tasha Harkness (“Harkness”). All 

Defendants are federal actors (Defs. Mot. Dismiss, Doc. 15, at 4 n.1); Plaintiff does not specify 

whether they are sued in their official and/or individual capacities. (Doc. 1.) 

Plaintiff was placed on escape status from March 17, 2011 through March 22, 2011, 

when he failed to report to a prison during a transfer from FCI-Milan to a correctional facility 

in Illinois. (Doc. 1 ¶ 9.) On June 15, 2011, Plaintiff pleaded guilty to failure to report to prison, 

and received an additional one year sentence. (Id. ¶ 11.) Plaintiff returned to FCI-Milan on 

October 3, 2011. (Id. ¶ 12.) On October 27, 2011, the Bureau of Prisons sanctioned Plaintiff. 

(Id. ¶ 23-24.) Plaintiff lost 41 days of good time credit, and commissary, phone, and visiting 

privileges for 90 days. (Id. ¶ 24.) Plaintiff’s appeal was denied as untimely on September 3, 

2011. (Id. ¶ 26 & Ex. K.) 

Plaintiff alleges that the process by which he was disciplined violated his Fifth and 

Fourteenth Amendment rights. (Id. ¶ 19.) First, he objects that he did not properly receive the

incident report within 24 hours. 28 C.F.R. § 541.5(a) states that an inmate “will ordinarily 

receive the incident report within 24 hours of staff becoming aware of [the inmate’s]

involvement in the incident.” The incident report issued on March 18, 2011, but Plaintiff did 

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not receive the report until October 12, 2011, eight days after he returned to FCI-Milan. (Doc. 

1 ¶ 10, 12, 27.) Second, Plaintiff objects that he did not receive a unit disciplinary hearing 

within five days as required by 28 C.F.R. § 541.7(c) because the hearing was not held until 

October 24, 2011. (Id. ¶ 14.) Defendant Walton extended the time for the hearing because of 

Plaintiff’s escape status and because the incident report was misplaced after Plaintiff’s arrival 

at FCI-Milan. (Id.) Plaintiff objects to the latter explanation, arguing that the incident report 

could not be misplaced and Walton “misrepresented the facts.” (Id. ¶ 16.) Third, Plaintiff 

objects that Defendant Potts, “failed in her duty for not being fair and impartial” in conducting 

the next level hearing on October 27, 2011. (Id. ¶ 23.) Finally, he objects that Defendant 

Harkness did not timely provide him a packet of materials required for initiating his appeal. 

(Id. ¶ 25-26.) Plaintiff seeks $750,000 in damages. (Id. ¶ 29.)

On May 27, 2015, the court dismissed Plaintiff’s claims under the Federal Tort Claim 

Act and any Bivens claims against the United States. (Doc. 4.) Defendants Walton and 

Harkness filed a motion to dismiss on September 23, 2015. (Doc. 15.) Plaintiff filed a response 

on November 19, 2015. Defendants Brown and Potts filed a notice of joinder in Defendant 

Walton and Harness’ motion to dismiss on November 24, 2015. (Doc. 23.) Defendants jointly 

filed a reply on December 2, 2015. (Doc. 25.) Accordingly, pursuant to E.D. Mich. LR 

7.1(f)(1), this motion is ready for report and recommendation without oral argument.

B. Governing Law

When deciding a motion to dismiss, “[t]he court must construe the complaint in the light 

most favorable to the plaintiff, accept all the factual allegations as true, and determine whether 

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the plaintiff can prove a set of facts in support of its claims that would entitle it to relief.” 

Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). As the Supreme Court 

held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint must be dismissed 

pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the 

complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” 

Id. at 570 (rejecting the traditional Rule 12(b)(6) standard set forth in Conley v. Gibson, 355 

U.S. 41, 45-46 (1957)). Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a 

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Twombly, 550 U.S. at 555 (citations omitted). Even though a complaint need not contain 

“detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief 

above the speculative level on the assumption that all the allegations in the complaint are true 

(even if doubtful in fact).” Id. (citations omitted).

“In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers 

the allegations in the complaint, although matters of public record, orders, items appearing in 

the record of the case, and exhibits attached to the complaint, also may be taken into account.” 

Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (quotation omitted). This circuit has 

further “held that ‘documents that a defendant attaches to a motion to dismiss are considered 

part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the 

plaintiff’s] claim.’” Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (quoting Venture 

Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)); Yeary v. 

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Goodwill Industries-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997) (consideration of other 

materials that “simply filled in the contours and details of the plaintiff’s [second amended] 

complaint, and added nothing new,” did not convert motion to dismiss into motion for 

summary judgment).

When a plaintiff is proceeding without the assistance of counsel, the court is required to 

liberally construe the complaint and hold it to a less stringent standard than a similar pleading 

drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star Bank, 190 

F.3d 708, 715 (6th Cir. 1999). However, even pro se complaints must satisfy basic pleading 

requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

C. Discussion

In support of their motion, Defendants argue that (1) this suit is Heck-barred; and (2) the

claims are untimely. (Doc. 15, at 6-9.)

I suggest that Plaintiff’s complaint is barred by the doctrine set forth in Heck v. 

Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Generally, suits 

challenging the fact or duration of confinement must be brought under the habeas corpus 

statutes and not § 1983. Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S. Ct. 1827, 36 L. Ed. 

2d 439 (1973). In Heck v. Humphrey, however, the U.S. Supreme Court considered whether 

this rule should be modified where a prisoner does not seek release but instead seeks an award 

of monetary damages. The Court held that “in order to recover damages for allegedly 

unconstitutional conviction or imprisonment, or for other harm caused by actions whose 

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that 

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the conviction or sentence has been reversed on direct appeal, expunged by executive order, 

declared invalid by a state tribunal authorized to make such determination, or called into 

question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. 

This “favorable termination” rule bars § 1983 claims that “would necessarily imply the 

invalidity” of a prior conviction or sentence that has not been overturned. Id. at 487. However, 

if “the plaintiff’s action, even if successful, will not demonstrate the invalidity of any 

outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in 

the absence of some other bar to the suit.” Id. (emphasis in original). Challenges based on 

procedural defects rather than erroneous results are also subject to the limitation announced in 

Heck. Edwards v. Balisok, 520 U.S. 650, 648, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997) (if 

established, procedural defect would imply the invalidity of the deprivation of good-time 

credits and thus, was Heck-barred). 

The Heck holding applies not only to state actions brought under § 1983 but also to 

Bivens actions like the instant case. Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir. 1998) 

(joining the Fifth and Eleventh Circuits).

Plaintiff is challenging the conduct of the warden, a UDC chairman, a disciplinary 

hearing officer, and a secretary in administering the disciplinary proceeding that resulted in the 

loss of good time credits, commissary, phone, and visits. To decide that due process was 

violated in assessing these sanctions would imply the invalidity of the loss of good-time 

credits, commissary, phone, and visits. See Edwards, 520 U.S. at 648. Thus, despite his 

protests to the contrary Plaintiff’s claims are Heck-barred. Id.; accord, Johnston v. Sanders, 86 

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F. App’x 909, 910 (6th Cir. 2004)(plaintiff “cannot challenge a disciplinary proceeding 

resulting in a loss of good-time credits in a Bivens action [when] his disciplinary conviction 

has not been reversed.”). It is therefore unnecessary to address Defendant’s argument that 

Plaintiff’s claims are untimely. 

D. Conclusion

I recommend that Defendants motion to dismiss (Doc. 15) be GRANTED and

Plaintiff’s Complaint (Doc. 1.) be DISMISSED for failure to state a claim upon which relief 

can be granted.

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and file 

specific written objections to the proposed findings and recommendations. A party may 

respond to another party’s objections within 14 days after being served with a copy.” Fed. R. 

Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a 

waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of 

Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 

(6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, 

will not preserve all the objections a party may have to this Report and Recommendation. 

Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit 

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Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 

72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to which it 

pertains. Not later than 14 days after service of an objection, the opposing party may file a 

concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in 

the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule 

without awaiting the response.

Date: April 20, 2016 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through 

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also 

sent via First Class Mail to Bilal Muhammad #070808089 at 839 North Jefferson Street, Suite 

305, Milwaukee, WI 53202.

Date: April 20, 2016 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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