Frazier v. Michigan Department of Corrections et al

Filing 8

ORDER of Summary Dismissal. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH A. FRAZIER,
Plaintiff,
v.

Case No. 11-cv-13172
Honorable Nancy G. Edmunds

MICHIGAN DEPARTMENT
OF CORRECTIONS,
Defendants.
____________________________/
ORDER OF SUMMARY DISMISSAL
I. INTRODUCTION
This is a civil rights action filed by Kenneth A. Frazier (“Plaintiff”), a prisoner currently
incarcerated by the Michigan Department of Corrections at the Gus Harrison Correctional
Facility in Adrian, Michigan. Plaintiff filed this Complaint naming the Michigan Department
of Corrections (“MDOC”) and the Michigan Parole Board (“Parole Board”) as Defendants.
He alleges that the MDOC has violated his rights under the Americans With Disabilities Act
of 1990 (ADA), 42 U.S.C. § 12131 et.seq., and his rights under the Fifth, Eighth, and
Fourteenth Amendments. He also alleges that the Parole Board has discriminated against
him by impeding with his parole eligibility rights. He seeks declaratory, injunctive, and
monetary relief for the alleged violations.
The Court has granted Plaintiff permission to proceed without prepayment of the
fees and costs for this action. Under the Prison Litigation Reform Act, Pub.L. No. 104-134,
110 Stat. 1321 (1996), the Court is required to dismiss any prisoner action brought under
federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from a defendant immune from such relief. 28
U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se
complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept his
allegations as true, unless they are clearly irrational or wholly incredible. Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
Applying those standards, Plaintiff’s action will be dismissed because Defendants
are immune from suit and Plaintiff fails to state a claim for relief.
On September 16, 2011, Plaintiff filed a “Motion for Appointment of Guardian Ad
Litem,” asking the Court to appoint a guardian to assist him in exhausting his administrative
remedies with respect to the allegations in his Complaint. Because the Court is dismissing
the Complaint, Plaintiff’s Motion will be denied as moot. The Court, however, makes no
determination as to any future claims against any other defendants.
II. DISCUSSION
A. Facts
Plaintiff states that the allegations outlined in his Complaint occurred while he was
incarcerated at the Earnest C. Brooks Correctional Facility. He claims that, on January 5,
2011, a Mental Health Case Management Plan was set forth where he was actively
involved in therapeutic group sessions, had work assignments, and was misconduct free.
On January 10, 2011, he was interviewed by the Parole Board, where he informed the
Parole Board that his bank-robbery offense was caused by an outstanding drug debt and
that he turned himself over after committing the crime. On January 24, 2011, the Parole
Board informed Plaintiff “that further investigation was needed before reaching a decision
in your case.” Plaintiff’s Complaint, 3-a. On February 15, 2011, Plaintiff was transferred
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to the Gus Harrison Correctional Facility. On June 10, 2011, the Parole Board denied him
parole.
B. Failure to State a Claim
A complaint may be dismissed for failure to state a claim if it fails “to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 45-46 (1957)). While a complaint need not contain detailed factual allegations, a
plaintiff's allegations must include more than labels and conclusions. Twombly, 550 U.S.
at 555; Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.”).
The Court must determine whether Plaintiff’s Complaint contains “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, --U.S. at ---,129 S.Ct. at 1949. Although the plausibility standard is not equivalent to a “
‘probability requirement,’ [] it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged-but it has not ‘show[n]’-that the pleader is entitled to relief.” Id. at 1950 (quoting
Fed. R. Civ. P. 8(a) (2)); see also Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (holding
that the Twombly/Ashcroft plausibility standard applies to dismissals of prisoner cases on
initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was
committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983
is a method for vindicating federal rights, not a source of substantive rights itself, the first
step in an action under § 1983 is to identify the specific constitutional right allegedly
infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
C. Claim Against MDOC
Plaintiff may not maintain a civil rights action against the MDOC. Regardless of the
form of relief requested, the states and their departments are immune under the Eleventh
Amendment from suit in the federal courts, unless the state has waived immunity or
Congress has expressly abrogated Eleventh Amendment immunity by statute. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); O’Hara v.
Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated
Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and
the State of Michigan has not consented to civil rights suits in federal court. Abick v.
Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth
Circuit has specifically held that the MDOC is absolutely immune from suit under the
Eleventh Amendment. See, e.g., McCoy v. Michigan, 369 F.App’x 646, 653-54 (6th Cir.
2010); Turnboe v. Stegall, 234 F.3d 1270, 2000 WL1679478, at *2 (6th Cir. 2000) (Table).
In addition, the State of Michigan (acting through the MDOC) is not a “person” who may be
sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613,
617 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)). Therefore,
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the Court dismisses the MDOC from this action.
D. Claim Against Parole Board
Likewise, the Michigan Parole Board enjoys immunity from suit under the Eleventh
Amendment.

Horton v. Martin, 137 F.App’x. 773, 775 (6th Cir. 2005).

Eleventh

Amendment immunity “bars all suits, whether for injunctive, declaratory or monetary relief,
against the state and its departments [].” Thiokol Corp. v. Dep’t of Treasury, State of Mich.,
Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993).
Furthermore, to the extent Plaintiff is challenging the denial of his parole, he is
challenging the fact or duration of his confinement, and such allegations would be more
appropriate in a habeas petition, following exhaustion of state remedies. It is not the proper
subject of a civil rights action brought pursuant to § 1983. See Preiser v. Rodriguez, 411
U.S. 475, 484, 494 (1973). The Supreme Court’s decisions in Heck v. Humphrey, 512 U.S.
477 (1994), and its progeny, “indicate that a state prisoner’s § 1983 action is barred (absent
prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner's suit (state conduct leading to conviction or internal prison
proceedings)— “if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson v. Dotson, 544 U.S.

74, 81-82 (2005) (emphasis in original). Heck ‘applies to proceedings that call into question
the fact or duration of parole or probation.’” Noel v. Grzesiak, 96 F.App’x 353, 354 (6th Cir.
2004) (quoting Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996)).
The facts as alleged indicate that no state officials have invalidated the Michigan
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Parole Board’s decision not to release Plaintiff on parole. Nor does it appear that a federal
court has reviewed and invalidated the Parole Board’s decision. And because success in
this action would demonstrate the invalidity of Plaintiff’s continued confinement, his claims
are not cognizable in this civil rights action.
Plaintiff’s claims would lack merit even if they were cognizable in a civil rights
complaint. He has not alleged any facts showing entitlement to relief under the Americans
with Disabilities Act. He also has not shown how his rights under the Fifth Amendment
were violated. His due process and Eighth Amendment claims lack merit because he has
no constitutional right to release on parole, Greenholtz v. Inmates of the Nebraska Penal
and Corr. Complex, 442 U.S. 1, 7 (1979), and in Michigan “a prisoner’s release on parole
is discretionary with the parole board.” Mich. Comp. Laws § 791.234(11).
That the state holds out the possibility of parole provides no more than
a mere hope that the benefit will be obtained. To that extent the general
interest asserted here is no more substantial than the inmate’s hope that he
will not be transferred to another prison, a hope which is not protected by due
process.
Greenholtz, 442 U.S. at 11 (citations omitted). Because Plaintiff has no liberty interest in
parole, he has no basis for claiming a violation of due process, Wagner v. Gilligan, 609
F.2d 866, 867 (6th Cir. 1979) ( per curiam ), and the “[d]enial of parole under a statute
dictating discretion in parole determination does not constitute cruel and unusual
punishment” under the Eighth Amendment. Lustgarden v. Gunter, 966 F.2d 552, 555 (10th
Cir. 1992).
III. CONCLUSION
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)
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and 1915A(b), and 42 U.S.C. § 1997e(c), because Defendants MDOC and the Parole
Board are immune from suit and because Plaintiff fails to state a claim for relief.
To the extent that Plaintiff’s claims fall under the rubric of Heck, those claims are
DISMISSED WITHOUT PREJUDICE until Plaintiff’s criminal convictions have been
invalidated. When a prisoner’s civil-rights claims are barred by the Heck v. Humphrey
doctrine, the appropriate course for a federal district court is to dismiss the claims for lack
of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3), rather
than to dismiss the complaint with prejudice as being frivolous, because the former course
of action is not an adjudication on the merits and would allow the prisoner to reassert his
claims if his convictions or sentences are later invalidated. See Murphy v. Martin, 343
F.Supp.2d 603, 609 (E.D. Mich. 2004).
IT IS FURTHER ORDERED that, Plaintiff’s “Motion for Appointment of Guardian Ad
Litem” [dkt. # 7] is DENIED as moot.
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). Because an appeal from this decision would
be frivolous and could not be taken in good faith, Plaintiff may not proceed in forma
pauperis on appeal if he appeals this decision. 28 U.S.C. § 1915(a)(3); Coppedge v.
United States, 369 U.S. 438, 445 (1962); McGore v. Wrigglesworth, 114 F.3d 601, 610-11
(6th Cir. 1997).

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge

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Dated: October 3, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on October 3, 2011, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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