UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MALEK BOUZID ALIANE,

 Plaintiff, 

v.

CHRISTINE A. McKEE, et al.,

 Defendants.

Case No. 2:17-CV-1002

JUDGE MICHAEL H. WATSON

Magistrate Judge Jolson 

 

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Malek Bouzid Aliane, a pro se prisoner in federal custody, filed a Motion for 

Leave to Proceed in forma pauperis on November 15, 2017. (Doc. 1). Pursuant to 28 U.S.C. 

§ 1915(a), that Motion is GRANTED. All judicial officers who render services in this action 

shall do so as if the costs had been prepaid. However, as explained below, the Court concludes 

this action cannot proceed.

Because Plaintiff is a prisoner seeking redress from the government, this Court must 

conduct an initial screening pursuant to 28 U.S.C. § 1915A(a). The Court must dismiss the 

complaint if it determines that it is frivolous or 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. 28 

U.S.C. § 1915(e)(2); see Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“[T]he allegations 

of a complaint drafted by a pro se litigant are held to less stringent standards than formal 

pleadings drafted by lawyers....”); Thompson v. Kentucky, No. 86-5765, 1987 WL 36634, at *1 

(6th Cir. 1987) (“Although pro se complaints are to be construed liberally, they still must set 

forth a cognizable federal claim.” (citation omitted)). In order to survive dismissal for failure to 

state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 
2

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Applying those standards here, 

the Undersigned RECOMMENDS DISMISSAL.

I. BACKGROUND

Plaintiff has been a criminal defendant in several cases in this Court and has also initiated 

numerous civil lawsuits here. A review of some of those cases is relevant to the background of

this matter, in which he alleges his confinement in a special housing unit based on a laterexpunged disciplinary conviction violated his due process rights. 

A. Plaintiff’s Relevant Criminal History

On September 16, 2011, Plaintiff was sentenced in this Court to a 30-month term of 

imprisonment, followed by a one-year term of supervised release, for aggravated identity theft 

and bank fraud, in violation of 18 U.S.C. §§ 1028A(a)(1) and 1344. See Case No. 2:11-cr-59. 

Just over three months later, on December 20, 2012, Plaintiff was sentenced again in this Court 

to a 48-month term of imprisonment, followed by a three-year term of supervised release, for 

mail fraud, and aggravated identity theft, in violation of 18 U.S.C. §§ 1341 and 2, and 

1028A(a)(1). See Case No. 2:12-cr-145.

Plaintiff was serving time for those convictions in Alvis House, a residential re-entry 

center located in Columbus, Ohio, when a new criminal complaint charged him with identity 

theft, mail fraud, and wire fraud. See Case No. 2:15-cr-194. In other words, Plaintiff was 

charged with engaging in criminal conduct while still in custody. See id. Consequently, the 

United States Marshals Service arrested Plaintiff and took him into custody on July 21, 2015,

when he was returning from his work assignment to Alvis House. See id. Plaintiff was then 

booked into the Franklin County jail. See id.
3

Plaintiff ultimately pled guilty to mail fraud and false claims against the United States 

and was sentenced to thirty-six months on each count, to run concurrently to one another and 

consecutively to his sentence on the previous convictions, to be followed by a three-year term of 

supervised release. See Case No. 2:15-cr-194 (Doc. 40). 

B. The Relevant Incident Report 

Plaintiff’s arrest on July 21, 2015, while serving time at Alvis House prompted its

Operations Manager Christine McKee to issue an incident report nine days later on July 30, 

2015. The incident report charged Plaintiff with technical “escape” in violation of Bureau of 

Prisons (“BOP”) Code 102. It stated: 

Inmate Aliane is charged with the BOP Prohibited Act #102; Escape due to being

arrested on [July 20, 2015 at 5:30 p.m.], by Marshal Stroh, on a criminal 

complaint of identity theft, mail fraud, and wire fraud. Inmate Aliane was 

apprehended in the parking lot of Alvis House for Men facility and then booked 

into the Franklin County Jail.... 

(Doc. 1-1, PAGEID #: 10). The report incorrectly stated that Plaintiff was arrested on July 20, 

2015, not July 21, 2015. (Id.).

C. This Lawsuit

The incident report is the foundation of this lawsuit, one of several Plaintiff filed as a 

result of his July 21, 2015 arrest, despite his ultimate conviction on the underlying charges. See, 

e.g., Aliane v. Bailey, et al., No. 2:17-cv-142 (claiming an “illegal search and seizure” of his car 

and personal property and a civil conspiracy to unlawfully retain, search, and seize his vehicle 

and personal property, awaiting decision on a report and recommendation of dismissal). Plaintiff 

alleges that, after he was served with the incident report on August 10, 2015, he requested but 

was improperly denied “a witness and documents in his defense.” (Id. at ¶ 9). The following 

day, the Center Discipline Committee (“CDC”) recommended that Plaintiff be found guilty of 
4

escape and sanctioned. (Id. at ¶ 10).

Plaintiff asserts that Chris Paul, a Residential Reentry Manager for the BOP, reviewed 

Ms. McKee’s incident report to ensure compliance with BOP Program Statement 5270.09 and 

due process, and then forwarded it to BOP Disciplinary Hearing Officer (“DHO”) Jeff George

for review. (See id. at ¶¶ 5–6, 11). Plaintiff alleges that Jeff George approved the CDC’s 

recommendation and imposed a sanction of 41 good time credits removed on January 27, 2016. 

(Id. at ¶ 12). Plaintiff states that Ms. McKee served him with the report on January 29, 2016. 

(Id. at ¶ 13).

1. Plaintiff’s Appeal

Plaintiff appealed the CDC’s recommendation, claiming that “the incident report was 

delivered late, the reason for the delay is not sufficient, he did not escape, he was arrested and 

the code is not listed as a prohibited act in [the] policy.” (Id. at PAGEID #: 14). Upon review, 

the North Central Regional Director found that the incident report did not describe the elements 

of the charge because “it [did] not have any time frames listed for the escape.” (Id. at ¶ 15). The 

Regional Director likewise found that “no part of the incident report ha[d] the correct date of the 

incident” and “[t]he arrest documentation [was] not included in the packet, which is required.” 

(Id.). The Regional Director determined that the CDC did not explain why the incident report

was delayed, and it “should have explained more clearly” why the witness statement was denied. 

(Id.). Thus, “[t]o ensure compliance with Program Statement 5270.09 Inmate Discipline 

Program,” the Regional Director returned the incident report to a DHO “for corrective action.” 

(Id; see also id. at ¶¶ 14–15).

2. Plaintiff’s Placement in a Special Housing Unit

Plaintiff alleges that, although the matter was remanded for corrective action on May 24, 
5

2016, he was placed in a special housing unit upon his arrival at a federal correctional institution 

on June 17, 2016, because the incident report remained pending. (Id. at ¶¶ 15–16; see also id. at 

PAGEID #: 14). Plaintiff claims he was held in that special housing unit for 25 days until the 

rehearing. (Id. at ¶ 17). Plaintiff states that a different DHO reheard the incident report on July 

13, 2016, and “expunged it due to inconsistencies with due process.” (Id. at ¶ 18; see id. at

PAGEID #: 15 (“In accordance with Program Statement 5270.09—Expunged incident report 

#2809158—Due to Inconsistencies with Due Process.”). Consequently, Plaintiff was released 

from the special housing unit. (Id. at ¶ 18).

3. The Complaint

Plaintiff names Ms. McKee, Mr. Paul, and Mr. George as Defendants in this case based 

on their alleged “failure to adhere to Plaintiff’s due process rights in the disciplinary proceedings 

as guaranteed by the U.S. Constitution....” (Id. at ¶ 21). Plaintiff “seeks damages for the harm 

caused by the facts which resulted in his disciplinary conviction and sanction, as well as the 

twenty-five (25) days spent in the [special housing unit].” (Id. at ¶ 22). Plaintiff has sued 

Defendants in their individual capacities. (Id. at ¶ 7).

D. Plaintiff’s Habeas Case

It is also worth noting that, in addition to numerous other cases filed in this Court, see 

Aliane v. Dean, et al., No. 2:03-cv-1155 (alleging that he was placed in isolation unit on false 

charges of forging documents and embezzling property, dismissed on July 21, 2005), Aliane v. 

United States Marshal’s Service, et al., No 2:14-cv-602 (claiming that Defendants released his 

property without authorization, dismissed on December 11, 2015), Plaintiff also filed a habeas 

petition under 28 U.S.C. § 2241, based on his placement in the special housing unit. See Aliane 

v. Warden, Franklin Cty. Corr. Ctr. I, No. 2:16-cv-146. However, Plaintiff moved to dismiss his 
6

petition after the incident report was expunged. (See Doc. 24 in Aliane, No. 2:16-cv-146). In so 

moving, his counsel acknowledged that “the BOP has agreed to rescind Petitioner’s prior 

disciplinary sanctions and remove any and all negative information from his institutional files.” 

(Id. at 3). The Court granted Plaintiff’s motion and dismissed the habeas petition on September 

7, 2017. (See Docs. 31–32 in Aliane, No. 2:16-cv-146) (terminating the action).

II. DISCUSSION

In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 

(1971), the Supreme Court recognized an implied cause of action for constitutional violations by 

a federal official acting under color of federal law. To state a successful Bivens claim, the 

plaintiff must allege facts which demonstrate that the individual defendant acted “under color of 

federal authority” and was involved personally in the deprivation of constitutional rights. See 

Mueller v. Gallina, 137 F. App’x 847, 850 (6th Cir. June 24, 2005). In this case, because

Plaintiff fails to demonstrate facts which support a deprivation of his constitutional rights, his 

complaint must be dismissed.

“Prison disciplinary proceedings are not part of a criminal prosecution, and the full 

panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 

U.S. 539, 556 (1974). In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court explained 

that whether a prisoner had been subjected to a due process violation in the context of a prison 

disciplinary proceeding depends upon whether the restraint “imposes atypical and significant 

hardship on the inmate in relation to the ordinary incidents of prison life” or “will inevitably 

affect the duration of his sentence.” Id. at 484, 487. More specifically, the Supreme Court held 

that the prisoner’s 30 days in segregated confinement did not present the type of atypical, 

significant deprivation that might conceivably create a liberty interest, even when his 
7

disciplinary record was later expunged as to the more serious charges against him. Id. at 486; 

see also Jones v. Wilson, No. 6:09-cv-235, 2009 WL 3211512, at *2 (E.D. Ky. Oct. 1, 2009)

(relying on Sandin to find “procedural due process was not required” for a prisoner’s thirty-day 

stay in segregation because “there was no impact on the length of ... imprisonment and no 

atypical hardship on the inmate in relation to the ordinary incidents of prison life”). As one 

Court explained, the due process clause does not “create a liberty interest to be free from 

administrative segregation.” McCullough v. Fed. Bureau of Prisons, No. 1:06-cv-563, 2010 WL 

5136133, at *5 (E.D. Cal. Dec. 6, 2010) (stating that “[a]dministrative segregation is the type of 

confinement that should be reasonably anticipated by inmates at some point in their 

incarceration”).

This case mirrors Fiorentino v. Biersbach, 64 F. App’x 550, 551 (7th Cir. 2003), a Bivens

action filed by an inmate against various employees of a federal correctional institution. As in

this case, the inmate alleged that his confinement in segregation violated his due process rights 

because it was based on a later-expunged disciplinary conviction. Id. Relying on Sandin, the 

district court dismissed the action on an initial screen for failure to state a claim, despite the fact 

that the inmate had spent approximately sixty days in segregation. Id. at 552. The Seventh 

Circuit Court of Appeals affirmed, indicating that the inmate’s claim was “squarely barred by 

Sandin . . . .” Id. at 551.

Because Plaintiff’s placement in a special housing unit for 25 days until the rehearing 

does not rise to the level of a constitutional violation and the expungement of the incident report 

does not inevitably affect the duration of his sentence, Plaintiff fails to state a claim for a 

deprivation of his due process rights. See id. at 553; Sandin, 515 U.S. at 484; see also Staples v. 

United States, No. 1: 16-cv-1284, 2017 WL 5640877, at *1 (W.D. La. Sept. 25, 2017) 
8

(recommending denial on initial screen of Bivens claim based on expunged disciplinary 

convictions), adopted by Staples v. United States, No. 1:16-cv-1284, 2017 WL 5640763, at *1 

(W.D. La. Nov. 21, 2017); Muhammad v. United States, No. 07-68-GFVT, 2009 WL 3161475, at 

*6 (E.D. Ky. Sept. 25, 2009) (finding Sandin prohibited claim after report was expunged because 

inmate sustained “no actual or compensable injury”); Freeman v. Berge, No. 04-C-302-C, 2004 

WL 1196815, at *5 (W.D. Wis. May 27, 2004) (finding Plaintiff’s allegations were insufficient 

to implicate a protected liberty interest under Sandin).

Furthermore, even if Plaintiff had stated a cognizable due process claim, his claims 

against these particular Defendants would nonetheless fail. See, e.g., Aladimi v. Alvis 

House/Cope Ctr., et al., No. 3:10-cv-121, 2012 WL 726852, at *3–5 (S.D. Ohio Mar. 6, 2012) 

(noting that “even if [plaintiff, a federal prisoner], had pursued a Bivens claim against Alvis 

House and its employees, it does not appear that the claim would be viable.”); Sanders v. Burton, 

No. 2:08-cv-144, 2008 WL 5102525, at *2 (W.D. Mich. Dec. 1, 2008) (noting that hearing 

officers are entitled to absolute judicial immunity from inmate’s suits for actions taken as hearing 

officers). Thus, the Undersigned RECOMMENDS DISMISSAL.

III. CONCLUSION

For the reasons stated, the Undersigned RECOMMENDS that Plaintiff’s complaint be 

DISMISSED. (Doc. 1-1).

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo
9

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. 

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: December 13, 2017 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE