Clark v. Owens

Filing 5

OPINION AND ORDER Summarily Dismissing Without Prejudice 1 Complaint filed by Burrell Clark and Granting Plaintiff Additional Time to File an Amended Complaint. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BURRELL CLARK,
Plaintiff,

Civil No. 2:21-CV-10631
HON. SEAN F. COX
UNITED STATES DISTRICT JUDGE

v.
MS. OWENS,
Defendant,
__________________________________/
OPINION AND ORDER SUMMARILY DISMISSING CIVIL RIGHTS COMPLAINT
WITHOUT PREJUDICE AND GRANTING PLAINTIFF ADDITIONAL TIME TO FILE
AN AMENDED COMPLAINT
Burrell Clark, (“Plaintiff”), incarcerated at the Macomb Correctional Facility in New
Haven, Michigan, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. The complaint is
dismissed without prejudice, because the complaint as written fails to adequately state a claim for
relief under 42 U.S.C. § 1983. The Court GRANTS plaintiff sixty days from the date of this order
to file an amended complaint which adequately pleads a claim for relief.
I. STANDARD OF REVIEW
Plaintiff has paid the entire filing fee of $ 350.00, plus the $ 52.00 administrative fee,
rendering inapplicable this Court’s authority to screen his complaint for frivolity or maliciousness
pursuant to a portion of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2).
However, the Court has an initial and continuing obligation under Fed. R. Civ. P. 12(b)(1) to
review and dismiss cases in which the Court lacks subject matter jurisdiction. Because the Court
finds that plaintiff’s claims are devoid of merit or no longer open to discussion, the Court will sua
sponte dismiss the complaint for lack of subject matter jurisdiction.

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A federal district court’s authority to screen and sua sponte dismiss complaints under 28
U.S.C. § 1915(e)(2) is limited to those prisoner complaints that are filed in forma pauperis. Benson
v. O'Brian, 179 F. 3d 1014, 1015 (6th Cir. 1999). Plaintiff did not file his complaint in this case
as an indigent, but paid the filing fee and did not seek in forma pauperis status. As a general rule,
a district court may not sua sponte dismiss a complaint where the filing fee has been paid unless
the court gives the plaintiff the opportunity to amend the complaint. Apple v. Glenn, 183 F. 3d 477,
479 (6th Cir. 1999).
However, a review of a prisoner’s civil rights complaint pursuant to 28 U.S.C. § 1915A is
appropriate regardless of whether the prisoner has sought in forma pauperis status when the claim
is brought against a governmental entity. Benson, 179 F. 3d at 1017. Therefore, if a prisoner’s
complaint seeks relief from a governmental entity, officer, or employee, Congress has directed that
the district court must dismiss it, or any part thereof, which (a) is frivolous, malicious, or fails to
state a claim upon which relief can be granted, or (b) seeks monetary relief from a defendant who
is immune from suit for monetary damages. 28 U.S.C. § 1915A. Furthermore, “a district court
may, at any time, sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations of a complaint are
totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to
discussion.” Apple v. Glenn, 183 F. 3d at 479 (citing Hagans v. Lavine, 415 U.S. 528, 536-37
(1974)(citing numerous Supreme Court cases for the proposition that patently frivolous,
attenuated, or unsubstantial claims divest the district court of jurisdiction)).
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.”

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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 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 is to 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, 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, must plead facts sufficient to show a legal wrong has
been committed from which plaintiff may be granted relief. Fed. R. Civ. P. 12(b); Dekoven v. Bell,
140 F. Supp. 2d 748, 755 (E.D. Mich.2001).
While a complaint “does not need detailed factual allegations,” the “[f]actual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)(footnote and citations omitted). Stated differently, “a complaint must
contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting 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.” Id. (citing Twombly,
550 U.S. at 556).
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff must show
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
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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).
II. COMPLAINT
Plaintiff’s complaint is against Ms. Owens, a psychological case manager. Plaintiff
actually addresses the complaint to Mr. John F. Lopez, the State Personnel Director for the
Michigan Department of Civil Service Commission. Plaintiff asks for an investigation to be
conducted against Ms. Owens, but he does not state why Ms. Owens should be investigated. The
complaint offers no factual allegations that Ms. Owens violated any of plaintiff’s constitutional
rights. Plaintiff states that he has a right under the federal and Michigan constitutions to seek
redress for any infringement of his rights. Plaintiff further argues that the Michigan Attorney
General and the Federal Bureau of Investigation have a duty to investigate crimes and the Michigan
Civil Service Commission and the Ombudsman for the Michigan Department of Corrections have
a duty to implement and protect prisoner rights. Plaintiff alleges a violation of public office,
intentional dereliction of duty, and inhumane treatment of employees, prisoners, or the general
public. Plaintiff cites to numerous federal and state constitutional and statutory provisions.
Plaintiff, however, makes no specific factual allegations against Ms. Owens that she was
personally involved in any deprivation of his constitutional rights in order to state a claim for relief.
III. DISCUSSION
Plaintiff’s claims must be dismissed because his allegations are conclusory and vague.
In the context of a civil rights claim, conclusory allegations of unconstitutional conduct
without specific factual allegations fail to state a claim under § 1983; some factual basis for such

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claims must be set forth in the pleadings. Lillard v. Shelby County Board of Education, 76 F. 3d
716, 726 (6th Cir. 1996); See also Johnson v. Freeburn, 29 F. Supp. 2d 764, 767 (E.D. Mich.
1998)(conclusory unsupported allegations of a constitutional deprivation do not state a § 1983
claim).
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” This rule seeks “to avoid
technicalities and to require that the pleading discharge the function of giving the opposing party
fair notice of the nature and basis or grounds of the claim and a general indication of the type of
litigation involved.” Chase v. Northwest Airlines Corp., 49 F. Supp. 2d 553, 563 (E.D.
Mich.1999)(quoting Wright & Miller, Federal Practice and Procedure: Civil 2d § 1215).
Plaintiff’s “bare bones”, conclusory assertions within his complaint are insufficient to state
a cognizable constitutional claim. See Coker v. Summit County Sheriff's Dep't, 90 F. App’x. 782,
787 (6th Cir. 2003); See also Payne v. Secretary of Treas., 73 F. App’x. 836, 837 (6th Cir.
2003)(affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2); “Neither this
court nor the district court is required to create Payne’s claim for her.”). The complaint is subject
to dismissal.
Under Federal Rule of Civil Procedure 15(a), “[a] party may amend its pleading once as a
matter of course within 21 days after serving it” and, “[i]n all other cases, ... [t]he court should
freely give leave [to amend] when justice so requires.” “[G]enerally, ‘[i]f it is at all possible that
the party against whom the dismissal is directed can correct the defect in the pleading or state a
claim for relief, the court should dismiss with leave to amend.’” Brown v. Matauszak, 415 F.
App’x. 608, 614 (6th Cir. 2011)(quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, FEDERAL PRACTICE AND PROCEDURE § 1483 (3d ed. 2010)). Dismissal of a
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complaint with leave to amend is especially preferable “‘where deficiencies in a complaint are
attributable to oversights likely the result of an untutored pro se litigant’s ignorance of special
pleading requirements[.]’ ”Id. at 614–15 (quoting Reynoldson v. Shillinger, 907 F.2d 124, 126
(10th Cir. 1990)).
The Court dismisses the complaint without prejudice. The Court grants plaintiff sixty days
from the date of this order to file an amended complaint which alleges sufficient facts that could
state a claim for relief.
V. ORDER
The complaint is dismissed for failing to state a claim upon which relief can be granted.
The dismissal is without prejudice to plaintiff filing an amended complaint within sixty days of
this order which pleads sufficient facts that would state a claim for relief.
Dated: April 28, 2021

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

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