Bills v. Romanowski et al

Filing 6

OPINION and ORDER of Summary Dismissal. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICKY BILLS,
Case Number: 2:15-CV-11417
HON. GERALD E. ROSEN

Plaintiff,
v.
K. ROMANOWSKI, ET AL.,
Defendant.
/

OPINION AND ORDER OF SUMMARY DISMISSAL
I.
Pending before the Court is Plaintiff Ricky Bills’ pro se civil rights complaint filed
under 42 U.S.C. § 1983. Plaintiff is proceeding without prepayment of the filing fee in
this action under 28 U.S.C. § 1915(a)(1). Plaintiff’s claims relate to an unfulfilled,
prepaid order for pecan pie. Plaintiff seeks monetary and injunctive relief. For the
reasons which follow, the complaint is dismissed for failure to state a claim upon which
relief may be granted.
II.
Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a short
and plain statement of the claim showing that the pleader is entitled to relief,” as well as
“a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is
to “give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this notice pleading standard
does not require “detailed” factual allegations, Twombly, 550 U.S. at 555, it does require
more than the bare assertion of legal conclusions or “an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Plaintiff has been granted leave to proceed without prepayment of the filing fee for
this action. Under the Prison Litigation Reform Act (“PLRA”), the court is required to
sua sponte dismiss an in forma pauperis complaint before service on a defendant if it
determines that the action is frivolous or malicious, fails to state a claim upon which relief
can be granted, or seeks monetary relief against a defendant who is immune from such
relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). Similarly, the Court is
required to dismiss a complaint seeking redress against government entities, officers, and
employees that it finds to be 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. See 28 U.S.C. § 1915A(b). A complaint is frivolous if it lacks an arguable
basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
To state a federal civil rights claim, a plaintiff must allege that: (1) he was
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deprived of a right, privilege, or immunity secured by the federal Constitution or laws of
the United States, and (2) the deprivation was caused by a person acting under color of
state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978). A pro se civil rights
complaint is to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
III.
Plaintiff’s complaint concerns a dispute over a $ 9.50 pecan pie. He claims that,
on July 7, 2013, $ 9.50 was deducted from his prison account to purchase a pecan pie
through a prison fundraiser. On July 25, 2013, when Plaintiff was called to pick up his
pecan pie, he was told that a German chocolate cake had been substituted for the pecan
pie. Plaintiff did not want the cake and, instead, requested a refund. To date, according
to Plaintiff, he has received neither the pecan pie nor the refund.
A prisoner has no constitutional right to purchase particular food items or to
receive a refund when one item is substituted for another. See Tokar v. Armontrout, 97
F.3d 1078, 1083 (8th Cir. 1996) (finding no constitutional right to access to a prison
snack shop); Boultinghouse v. Herrington, No. 2015 WL 1471039, *4 (W.D. Ky. March
31, 2015) (“[A]n inmate has no federal constitutional right to be able to purchase items
from a commissary at a certain price.”); Sowemimo v. Thomas, No. 09-639, 2009 WL
3806737, *5 (W.D. Pa. 2009) (“[T]he rule is that there is no federal Constitutional right to
purchase items from a commissary.”). This claim is essentially one for the loss of
personal property, i.e., the money spent on the pecan pie. A prisoner’s claim for the loss
of personal property fails to state a claim under § 1983 when the state provides an
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adequate post-deprivation remedy. Plaintiff has not shown that Michigan’s judicial
remedies are inadequate or that it would be futile to present his claim in the Michigan
state courts. Plaintiff has an adequate remedy in the state courts. See Copeland v.
Machulis, 57 F.3d 476 (6th Cir. 1995). Thus, Plaintiff has failed to state a claim upon
which relief may be granted under § 1983.
Accordingly, the complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e), for
failure to state a claim upon which relief may be granted.
SO ORDERED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: August 24, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on August 24, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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