Smith v. Penman et al

Filing 11

OPINION AND ORDER of Summary Dismissal. Signed by District Judge George Caram Steeh. (BSau)

Case 2:20-cv-12052-GCS-EAS ECF No. 11, PageID.39 Filed 02/18/21 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DERRICK LEE SMITH, #267009,
Plaintiff,1
CASE NO. 2:20-CV-12052
HON. GEORGE CARAM STEEH

v.
PATRICIA PENMAN, et al.,
Defendants.
/

OPINION AND ORDER OF SUMMARY DISMISSAL
I.
Michigan prisoner Derrick Lee Smith (“Smith”), currently confined at
the Muskegon Correctional Facility in Muskegon, Michigan, has filed a pro
se civil rights complaint and amended complaint pursuant to 42 U.S.C. §
1983. In his pleadings, he alleges that: (1) two law enforcement officers
harassed and defamed him, falsely accused him of rape, and convinced
officials to alter his 2008 state criminal judgment of sentence and prison

1

The Court notes that Smith lists a woman named Megan Taylor as a co-plaintiff.
Taylor, however, did not sign the complaint and the Court has no contact information for
her. Consequently, the Court shall not consider her a party to this action.
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record to reflect criminal sexual conduct convictions,2 and (2) two prison
mail clerks interfered with his mail, electronic messages, and photos. He
names Wayne County Deputy Patricia Penman, Detroit Police Officer Aleta
McNeal, JPay, and Muskegon Correctional Facility employees G. Scanlon
and K. Brown as the defendants in this action. He seeks injunctive relief
and monetary damages. Smith paid the filing and administrative fees for
this action.
For the reasons set forth herein, the Court dismisses the civil rights
complaint and concludes that an appeal cannot be taken in good faith.
II.
Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court is
required to dismiss a prisoner complaint seeking redress against
government entities, officers, and employees which 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.
2

Smith was convicted of six counts of first-degree criminal sexual conduct and
two counts of kidnapping pursuant to a no contest plea in the W ayne County Circuit
Court and was sentenced, as a fourth habitual offender, to concurrent terms of 22 ½
years to 75 years imprisonment on those convictions in 2008. See Smith v. Bauman,
No. 5:10-CV-11052, 2016 W L 898541 (E.D. Mich. March 9, 2016) (denying habeas
relief), cert. app. den., No. 16-1545, 2017 W L 5135543 (6th Cir. Jan. 31, 2017); see
also Offender Profile, Michigan Department of Corrections Offender Tracking
Information System (“OTIS”),
http://mdocweb.state.mi.us/otis2profile.aspx?mdocNumber=267009.
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See 28 U.S.C. § 1915A. A complaint is frivolous if it lacks an arguable
basis in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A pro se civil rights complaint is to be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, 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 Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation omitted). While this notice pleading
standard does not require “detailed” factual allegations, it does require
more than the bare assertion of legal principles or conclusions. Twombly,
550 U.S. at 555. Rule 8 “demands more than 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.

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(quoting Twombly, 550 U.S. at 557).
To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) he or she 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); Harris v. Circleville,
583 F.3d 356, 364 (6th Cir. 2009).
III.
Because Smith’s complaint involves multiple claims and multiple
defendants, the issue of misjoinder arises. Federal Rule of Civil Procedure
21 authorizes a federal court to sua sponte dismiss or sever parties and
claims in a civil action due to misjoinder. Rule 21 provides:
Misjoinder of parties is not a ground for dismissing an action.
On motion or on its own, the court may at any time, on just
terms, add or drop a party. The court may also sever any claim
against a party.
Fed. R. Civ. P. 21. See also Michaels Bldg. Co. v. Ameritrust Co., N.A.,
848 F.2d 674, 682 (6th Cir. 1988) (“Parties may be dropped ... by order of
the court ... of its own initiative at any stage of the action and on such
terms as are just.”); Coalition to Defend Affirmative Action v. Regents of
Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich. 2008).
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The joinder of claims, parties, and remedies is “strongly encouraged”
when appropriate to further judicial economy and fairness. United Mine
Workers of America v. Gibbs, 383 U.S. 715, 724 (1966). This does not
mean, however, that parties should be given free reign to join multiple
plaintiffs or multiple defendants into a single lawsuit when the claims are
unrelated. See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x 436, 437 (3d
Cir. 2007) (per curiam); George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007); Coughlin v. Rogers, 130 F.3d 1248, 1350 (9th Cir. 1997); Proctor v.
Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009) (adopting
magistrate judge's report). Prisoners should also not be allowed to
proceed with multiple defendant litigation on unrelated claims in order to
circumvent the filing fee requirements for federal civil actions or the PLRA's
three strikes provision. George, 507 F.3d at 607; Patton v. Jefferson Corr.
Ctr., 136 F.3d 458, 464 (5th Cir. 1998).
Federal Rule of Civil Procedure 18 governs the joinder of claims and
Federal Rule of Civil Procedure 20 governs the permissive joinder of
parties.3 Rule 18(a) provides: “A party asserting a claim ... may join, as
independent or alternative claims, as many claims as it has against an
3

Federal Rule of Civil Procedure 19 concerns the required joinder of parties and
is inapplicable to the case at hand. Fed. R. Civ. P. 19.
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opposing party.” Fed. R. Civ. P. 18(a). Rule 20(a)(2) addresses when
multiple defendants may be joined in one action. It provides:
Persons ... may be joined in one action as defendants if: (A)
any right to relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a)(2). When multiple parties are named, the analysis
under Rule 20 precedes that under Rule 18. Proctor, 661 F. Supp. 2d at
778. Thus, when joining multiple defendants in a single action, the
two-part test of Rule 20(a)(2) must be met.
In this case, Smith does not meet the two-part test of Rule 20(a)(2)
for the joinder of multiple defendants. His claims against Penman and
McNeal, which concern his state criminal case, do not arise out of the
same transaction, occurrence, or series of transactions or occurrences as
his claims against JPay, Scanlon, and Brown, which concern the handling
of his prison mail. The two sets of claims concern different facts, different
legal standards, different defendants, and different venues. Given such
circumstances, the Court finds that joinder of the multiple claims and
multiple defendants in one civil rights action is inappropriate.
The remaining question is whether severance or dismissal of the
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mis-joined parties and claims is warranted.4 As discussed, Federal Rule of
Civil Procedure 21 gives the Court discretion to invoke either remedy “on
just terms.” Several federal courts have interpreted “on just terms” to
mean “without gratuitous harm to the parties.” See Harris v. Gerth, No.
08-CV-12374, 2008 WL 5424134, *5 (E.D. Mich. Dec. 30, 2008) (citing
cases). Given that no harm to the parties is apparent from the record, and
given that the mail handling claims against JPay, Scanlon, and Brown
concern events that occurred at the Muskegon Correctional Facility in the
Western District of Michigan, the Court finds that dismissal, rather than
severance, of those claims and those defendants is the more appropriate
course of action. Accordingly, the Court shall dismiss those claims and
those defendants based upon misjoinder.
IV.
The remaining allegations in the complaint against Penman and
McNeal are also subject to dismissal. First, those allegations concern the
validity of Smith’s state criminal proceedings and resulting judgment. As
such, they are not properly raised in a civil rights action. A claim under §
1983 is an appropriate remedy for a state prisoner challenging a condition

4

Dismissal of the entire action for misjoinder is not permitted. Fed. R. Civ. P. 21.
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of imprisonment, Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), not the
validity of continued confinement. Heck v. Humphrey, 512 U.S. 477, 48687 (1994) (holding that a state prisoner does not state a cognizable civil
rights claim challenging his or her imprisonment if a ruling on the claim
would necessarily render his or her continuing confinement invalid, until
and unless the reason for that confinement has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal,
or been called into question by a federal court’s issuance of a writ of
habeas corpus under 28 U.S.C. § 2254). This holds true regardless of the
relief sought by the plaintiff. Id. at 487-89.
Heck and other Supreme Court cases, when “taken together, 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). The underlying basis for the holding in
Heck is that “civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486.

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Smith’s allegations that Penman and McNeal have acted improperly
or interfered with his state criminal case and altered the 2008 judgment
concern Smith’s state criminal proceedings. If he were to prevail on those
claims, his state criminal convictions and confinement would be called into
question. Consequently, those claims are barred by Heck and must be
dismissed.
Moreover, even if Heck does not bar the claims, the Court would
nonetheless dismiss them. A complaint lacks an arguable basis in fact
when the factual contentions are “clearly baseless” in that they describe
“fantastic” or “delusional” scenarios. Neitzke, 490 U.S. at 327-28; see also
Denton, 504 U.S. at 32-33 (a complaint is factually frivolous if “the facts
alleged rise to the level of irrational or wholly incredible”); Lawler v.
Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990).
Smith’s allegations that Penman and McNeal falsely accused him of
rape, arranged or conspired with the state court to falsify his state criminal
sentencing judgment and other records, and similar allegations, fall into
such a category. See, e.g., Taylor v. Rockford Police Dept., 165 F.3d 33,
1998 WL 783957, *1 (7th Cir. 1998) (unpublished) (affirming dismissal of
complaint as frivolous where plaintiff alleged that police attempted to kill

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him, there was a multi-agency conspiracy to cover up the assaults, the
attorney general's office faked a trial, and he was issued a fraudulent
marriage license); Kabbe v. City of San Diego, 139 F.3d 905, 1998 WL
80375, *1 (9th Cir. 1998) (unpublished) (affirming dismissal of complaint
where plaintiff alleged defendants intercepted and broadcasted her
thoughts); Williams v. Hart, 930 F.2d 36, 1991 WL 47118, *2 (10th Cir.
1991) (unpublished) (prisoner’s claim of intentional exposure to AIDS
through razor switching was delusional and frivolous); Sandles v. Randa,
945 F. Supp. 169, 171 (E.D. Wis. 1996) (dismissing complaint as frivolous
under § 1915A(b) where plaintiff alleged that defendants fabricated a
federal statute in order to imprison him).5
Additionally, to the extent that Smith alleges that Penman or McNeal
violated his constitutional rights by verbally harassing or threatening him,
he fails to state a claim upon which relief can be granted. Allegations of
verbal harassment and threats are insufficient to state a civil rights claim
under § 1983. Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see
also Wingo v. Tenn. Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012)
5

The Court notes that Smith previously filed a federal habeas petition challenging
his 2008 state criminal convictions and was denied relief. See Smith v. Bauman, No.
5:10-CV-11052, 2016 WL 898541 (E.D. Mich. March 9, 2016), cert. app. den., No. 161545, 2017 WL 5135543 (6th Cir. Jan. 31, 2017).
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(“Verbal harassment or idle threats by a state actor do not create a
constitutional violation and are insufficient to support a section 1983 claim
for relief.”); Montgomery v. Harper, No. 5:14-CV-P38-R, 2014 WL 4104163,
*2 (W.D. Ky. Aug. 19, 2014) (“[H]arassing or degrading language by a
prison official, while unprofessional and despicable, does not amount to a
constitutional violation.”). Even verbal threats of assault do not violate
constitutional rights, Miller v. Wertanen, 109 F. App’x 64, 65 (6th Cir.
2004), nor do verbal threats and abuse made in retaliation. Carney v.
Craven, 40 F. App’x 48, 50 (6th Cir. 2002). Smith’s allegations of verbal
harassment thus fail to state a claim for relief under § 1983. Any such
claims must be dismissed.
Lastly, to the extent that Smith alleges that Penman or McNeal
defamed him, he fails to state a claim upon which relief may be granted
under § 1983. Defamation and similar claims are matters of state law and
do not involve the violation of rights secured by the federal Constitution or
the laws of the United States. See Siegert v. Gilley, 500 U.S. 226, 233
(1991) (“Defamation, by itself, is a tort actionable under the laws of most
States, but not a constitutional deprivation.”); Paul v. Davis, 424 U.S. 693,
712-13 (1976) (defamation claim not cognizable under § 1983); Azar v.

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Conley, 456 F.2d 1382, 1389 (6th Cir. 1972) (“Civil Rights Act does not
give rise to a cause of action for slander”); Collier v. Austin Peay State
Univ., 616 F. Supp. 2d 760, 775 (M.D. Tenn. 2009) (claims for libel and
slander are not cognizable under § 1983); see also Harper v. (Unknown)
Arkesteyn, No. 19-1928, 2020 WL 4877518, *2 (6th Cir. April 28, 2020) (Ҥ
1983 does not provide redress solely for state law violations such as
defamation”). Allegations of defamation, while perhaps actionable under
Michigan law, do not provide a basis for relief under § 1983.
Consequently, any such claims shall be dismissed without prejudice to any
state law claims brought in state court. The Court declines to exercise
pendant jurisdiction over such claims.
V. CONCLUSION
For the reasons stated, the Court concludes that: (1) the claims
against JPay, Scanlon, and Brown concerning the handling of Smith’s
prison mail are misjoined and (2) Smith fails to state a claim upon which
relief may be granted under 42 U.S.C. § 1983 against Penman and McNeal
concerning the remaining allegations in his complaint. Accordingly, the
Court DISMISSES the civil rights complaint.

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Lastly, the Court concludes that an appeal from this order cannot be
taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United
States, 369 U.S. 438, 445 (1962).
IT IS SO ORDERED.
Dated: February 18, 2021
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 18, 2021, by electronic and/or ordinary mail and also on
Derrick Lee Smith #267009, Muskegon Correctional Facility,
2400 S. Sheridan, Muskegon, MI 49442.
s/Brianna Sauve
Deputy Clerk

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