Giles v. Washington et al

Filing 8

OPINION and ORDER Dismissing Plaintiff's Complaint, Denying Application for Appointment of Counsel, and Denying Right to Proceed without Prepayment of Fees and Costs on Appeal. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
HERBERT GILES-EL, #132442,
Plaintiff,

Case No. 15-cv-12748

v

Honorable Thomas L. Ludington

HEIDI WASHINGTON, ET AL.,
Defendants.
__________________________________________/
OPINION AND ORDER DISMISSING PLAINTIFF’S COMPLAINT, DENYING
APPLICATION FOR APPOINTMENT OF COUNSEL AND DENYING RIGHT TO
PROCEED WITHOUT PREPAYMENT OF FEES AND COSTS ON APPEAL
I.
On August 3, 2015, Plaintiff Herbert Giles-El, presently confined at the G. Robert Cotton
Correctional Facility in Jackson, Michigan, filed his pro se civil rights complaint pursuant to 42
U.S.C. § 1983. ECF No. 1.

Plaintiff alleges that, following his transfer to the Cotton

Correctional Facility from another prison on August 1, 2013, he discovered that his typewriter
and a lamp had been confiscated by prison personnel and that he has been unable to obtain a
return of the items despite repeated efforts. Id. Plaintiff claims that he was also denied his
request to have all of his legal briefs and motions downloaded from the typewriter, which led to
the denial of an unspecified court case. Id. Plaintiff seeks monetary damages and injunctive
relief. Id. On August 3, 2015, Plaintiff filed a motion for the appointment of counsel, ECF No.
3, and on August 26, 2015 Plaintiff filed an Application to proceed without prepaying fees or
costs. ECF No. 6.

Because Plaintiff has failed to state a claim upon which relief can be granted, Plaintiff’s
complaint will be dismissed. Plaintiff’s motion for the appointment of counsel will also be
denied.
II.
A.
As provided in 28 U.S.C. § 1915(e)(2)(B):
Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that:
(B) the action or appeal:
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). “A complaint
lacks an arguable basis in law or fact if it ... is based on legal theories that are indisputably
meritless.” Brown v. Bargery, 207 F. 3d 863, 866 (6th Cir. 2000) (citing Neitzke, 490 U.S. at
327-28). A complaint fails to state a claim “if it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim that would entitle him to relief.” Brown, 207 F. 3d at
867. Sua sponte dismissal is appropriate if the complaint lacks an arguable basis in law or fact
when filed. McGore, 114 F. 3d at 612; Goodell v. Anthony, 157 F. Supp. 2d 796, 799 (E.D.
Mich. 2001).
A pro se litigant’s complaint should be construed liberally, Middleton v. McGinnis, 860
F. Supp. 391, 392 (E.D. Mich.1994) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); that is,
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they are held to a “less stringent standard” than those drafted by attorneys. Haines v. Kerner, 404
U.S. 519, 520 (1972). Such complaints, however, still must plead facts sufficient to show a legal
wrong has been committed from which a plaintiff may be granted relief. Fed.R.Civ.P. 12(b);
Dekoven v. Bell, 140 F. Supp. 2d 748, 755 (E.D. Mich.2001).
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff must
establish that: (1) the defendant acted under color of state law; and (2) the offending conduct
deprived the plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F. 3d 673, 677 (6th
Cir.1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “If a plaintiff fails to make a
showing on any essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241 F.
3d 530, 532 (6th Cir.2001).
An unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful state post-deprivation remedy for the loss is available. Hudson v.
Palmer, 468 U.S. 517, 533(1984); Bass v. Robinson, 167 F. 3d 1041, 1049 (6th Cir. 1999).
Therefore, a plaintiff who brings a § 1983 procedural due process claim has the burden of
pleading and proving that the state remedies for redressing the wrong are inadequate. Vicory v.
Walton, 721 F. 2d 1062, 1066 (6th Cir. 1983). Where a plaintiff in a 42 U.S.C. § 1983 action
fails to demonstrate the inadequacy of his state remedies, the case should be dismissed. See Bass,
167 F. 3d at 1050.
B.
In the present case, Plaintiff has not alleged that the Michigan remedies for obtaining
compensation for his loss are inadequate, nor does he even indicate that he has attempted to
obtain relief from any court or tribunal in Michigan. “State tort remedies generally satisfy the

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post-deprivation process requirement of the Due Process Clauses.” Fox v. Van Oosterum, 176 F.
3d 342, 349 (6th Cir. 1999). Because Plaintiff does not allege that the post-deprivation remedies
available in the State of Michigan are inadequate, he has failed to state a claim upon which relief
can be granted and his complaint will be dismissed.
In fact, there are adequate post-deprivation remedies available to Plaintiff through the
State of Michigan. These Michigan remedies include M.C.R. 3.105, which allows for an action
for claim and delivery of the property, M.C.L.A. 600.2920, which provides a civil action to
recover possession of or damages for goods and chattels unlawfully detained, and M.C.L.A.
600.6401, the Michigan Court of Claims Act, which establishes a procedure to compensate for
alleged unjustifiable acts of state officials. See Copeland v. Machulis, 57 F. 3d 476, 480 (6th Cir.
1995).
Because Michigan provides plaintiff with adequate post-deprivation remedies for the loss
of his property, the alleged unauthorized intentional deprivation of Plaintiff’s property does not
rise to the level of a violation of Plaintiff’s federal due process rights. See Keenan v. Marker, 23
F. App’x 405, 407 (6th Cir. 2001). For this reason, Plaintiff cannot maintain an action in federal
court against Defendants for the intentional loss or destruction of his property.
C.
The Court likewise rejects Plaintiff’s related claim that he has been denied access to
courts. Prisoners have a constitutional right of access to the courts which extends to direct
appeals, habeas corpus applications, and civil rights claims only. Thaddeus-X v. Blatter, 175 F.
3d 378, 391 (6th Cir. 1999). A prisoner fails to state a claim for violation of the right of access
to the courts absent an allegation that the defendants hindered his or her pursuit of a direct

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criminal appeal, a petition for writ of habeas corpus, or a civil rights action to vindicate his or her
basic constitutional rights. Smith v. Campbell, 113 F. App’x 85, 87 (6th Cir. 2004).
Here, Plaintiff claims that he was denied his request to have all of his legal briefs and
motions downloaded from the typewriter, which led to the denial of an unspecified court case.
ECF No. 1. Plaintiff, however, does not specify the nature of legal action that he claims was
impeded by the confiscation of his typewriter. A prisoner is not entitled to relief on a conclusory
or speculative access to the courts claim. See Rodgers v. Hawley, 14 F. App’x 403, 409 (6th Cir.
2001). Because Plaintiff does not allege that the confiscation of the typewriter impeded his
ability to pursue a direct criminal appeal, a habeas petition, or a civil rights action, he is not
entitled to relief. Smith. 113 F. App’x at 87. The Court will dismiss the complaint.
III.
The Court will also deny plaintiff’s motion for the appointment of counsel. Although
there is a fundamental constitutional right to counsel in criminal cases, there is no constitutional
right to appointed counsel in a civil case. See Abdur-Rahman v. Michigan Dep’t of Corrections,
65 F. 3d 489, 492 (6th Cir. 1995).

Plaintiff also does not have a statutory right to the

appointment of counsel in a federal civil rights case. See Glover v. Johnson, 75 F. 3d 264, 268
(6th Cir. 1996).
IV.
Accordingly, it is ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED for
failing to state a claim upon which relief can be granted pursuant to § 1915(e)(2)(B).
It is further ORDERED that Plaintiff’s motion for the appointment of counsel, ECF No.
3, is DENIED.

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It is further ORDERED that if Plaintiff elects to appeal this decision, he may not proceed
without prepayment of fees and costs because any appeal would be frivolous and not in good
faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962); Goodell,
157 F.Supp.2d at 802.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 23, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 23, 2015.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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