Hadley v. Pendell et al
Filing
7
OPINION AND ORDER of Summary Dismissal. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NOEL HADLEY,
Petitioner,
Case No. 18-11584
Hon. Terrence G. Berg
v.
T PENDELL, ET AL.,
Respondent.
OPINION AND ORDER OF SUMMARY DISMISSAL
Pending before the Court is Plaintiff Noel Hadley’s pro se civil
rights complaint filed under 42 U.S.C. § 1983. Hadley, a state
prisoner confined at the Central Michigan Correctional Facility in
St. Louis, Michigan, originally filed the complaint in the United
States District Court for the Western District of Michigan but, after
dismissing
two
defendants
(the
Michigan
Department
of
Corrections and Richard Russell), the Western District transferred
the case to this Court. The complaint is DENIED because it fails to
state a claim upon which relief may be granted.
I. Standard
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.” F. 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 F. 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,
the-defendant-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, 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,
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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 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).
II. Discussion
Plaintiff’s complaint alleges that the mailroom facility at the
Central Michigan Correctional Facility improperly rejected two
books and a newspaper because they were not printed in blue or
black ink and were not from an approved vendor. He argues that
defendants, prison warden Lori Gidley, assistant resident unit
specialists M. Davis, and T. Pendell, violated his right to free speech
under the First Amendment and his right to equal protection by
denying his grievances challenging the withholding of the books
and newspaper.
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The First Amendment guarantees “the right of the people ... to
petition the Government for a redress of grievances.” U.S. Const.
amend. I. While a prisoner has a First Amendment right to file
grievances against prison officials, Herron v. Harrison, 203 F.3d
410, 415 (6th Cir. 2000), the First Amendment does not impose an
affirmative obligation on the government to consider, respond to, or
grant any relief on a petition for redress of grievances. Smith v.
Arkansas State Hwy. Employees, Local 1315, 441 U.S. 463, 464–65
(1979); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“A
citizen’s right to petition the government does not guarantee a
response to the petition or the right to compel government officials
to act on or adopt a citizen's views.”). Nor does a prisoner have a
constitutionally-protected
interest
in
an
inmate
procedure or the right to an effective procedure.
grievance
Walker v.
Michigan Dep’t of Corrections, 128 F. App’x 441, 445 (6th Cir. 2005).
Plaintiff’s dissatisfaction with the investigation of his concerns and
responses to his grievance fails to state a claim upon which relief
may be granted. See Carlton v. Jondreau, 76 F. App’x 642, 644 (6th
Cir. 2003).
Plaintiff also alleges a violation of his equal protection rights.
The linchpin of an equal protection claim is that the government
has treated people who are similarly-situated in a different
manner. Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1359–60
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(6th Cir. 1992). Plaintiff asserts, in conclusory fashion, that he is
being denied equal protection, but does not provide any factual
support for his assertion. He fails to indicate with any specificity
how he has been treated differently from others who are similarly
situated. The fact that some prisoners may be receiving
publications which Plaintiff deems similar to those he ordered does
not mean that those prisoners are similarly situated to Plaintiff or
that Plaintiff is being treated unfairly. Conclusory allegations are
insufficient to state a civil rights claim. Crawford-El v. Britton, 523
U.S. 574, 588 (1998). Prisoners are not members of a protected class
for equal protection purposes. Hampton v. Hobbs, 106 F.3d 1281,
1286 (6th Cir. 1997). Plaintiff fails to state an equal protection
claim in his complaint.
Finally, also before the Court is Plaintiff’s Motion to Reinstate
defendant Richard D. Russell. The District Court for the Western
District dismissed Russell because Plaintiff failed to make any
specific allegations against Russell. The Court also held that
Russell’s decision upholding the denial of Plaintiff’s grievance did
not create a claim because supervisory liability cannot be based
upon the mere failure to act. See Order, Dkt. 3.
Plaintiff seeks reinstatement of Russell on the ground that
Russell’s failure to act to correct the alleged wrongs is sufficient to
state a claim under § 1983. A claimed constitutional violation must
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be based upon active unconstitutional behavior. Grinter v. Knight,
532 F.3d 567, 575–76 (6th Cir. 2008). Supervisory liability may not
be based upon the mere failure to act. Id. at 576. Further, § 1983
liability may not be imposed simply because a supervisor denied an
administrative grievance or failed to act based upon information
contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999). Plaintiff’s motion is denied.
III. Order
IT IS ORDERED THAT:
(1) The civil rights complaint is DISMISSED WITHOUT
PREJUDICE FOR FAILING TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
(2) Plaintiff’s Motion to Reinstate is DENIED.
(3) IT IS CERTIFIED by the Court that any appeal taken by
Plaintiff would not be done in good faith.
SO ORDERED.
Dated: December 20, 2018 s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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Certificate of Service
I hereby certify that this Order was electronically filed, and
the parties and/or counsel of record were served on December
20, 2018.
s/A. Chubb
Case Manager
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