Montanez v. Salinas et al

Filing 6

ORDER Partially Dismissing Claims. John Jacobs, Christopher Lamentola, San Pedro Salina, Robert Vashaw, Wendy Walworth, Becky Carl and Andrew Dyer terminated. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:21-cv-11645-TGB-KGA ECF No. 6, PageID.58 Filed 01/18/22 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC MONTANEZ,

2:21-CV-11645-TGB-KGA

Plaintiff,
ORDER PARTIALLY
DISMISSING CLAIMS

vs.
ERNESTO SALINAS, ET AL.,
Defendants.

I.

INTRODUCTION

This is a pro se civil rights case brought pursuant to 42 U.S.C.
1983.

Michigan prisoner Eric Montanez, confined at the St. Louis

Correctional

Facility,

alleges

facility

staff

violated

his

Eighth

Amendment and First Amendment rights during several prison cell
searches that resulted in broken property in March and April of 2020,
which he alleges were done to harass and retaliate against him for filing
grievances. ECF No. 1, PageID.5-7, 10.

He names Inspectors Ernesto

Salinas and Brandon Hull, Corrections Officers San Pedro Salinas and
A. Myers, Warden Robert Vashaw, Assistant Deputy Wardens
Christopher Lamentola and Andrew Dyer, Deputy Warden Becky Carl,
Resident Unit Manager Wendy Walworth, and Assistant Resident Unit

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Supervisor John Jacobs as the defendants in this action and sues them
in their official and individual capacities.

Id. at PageID.2-4.

seeks injunctive relief and monetary damages.

Plaintiff

Id. at PageID.15.

The

Court has granted Plaintiff leave to proceed without prepayment of the
filing fee for this action.

ECF No. 5.

Having reviewed the matter, and for the reasons stated herein, the
Court concludes that the civil rights complaint must be dismissed in part
and that an appeal cannot be taken in good faith.
II. DISCUSSION
Under the Prison Litigation Reform Act of 1996 ( 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 from a defendant who is immune from such relief.

See

42 U.S.C. §1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). The Court is similarly
required to dismiss a complaint seeking redress against government
entities, officers, or employees if the action is 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. 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).
2

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A pro se civil rights complaint is construed liberally.
Kerner, 404 U.S. 519, 520-21 (1972).

Haines v.

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. (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,
3

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583 F.3d 356, 364 (6th Cir. 2009). Additionally, a plaintiff must allege
that the deprivation of rights was intentional, not merely negligent.
Davidson v. Cannon, 474 U.S. 344, 348 (1986); Daniels v. Williams, 474
U.S. 327, 333-36 (1986).
Despite the liberal pleading standard afforded pro se plaintiffs, the
Court finds that Plaintiff s complaint is subject to summary dismissal in
part.

First, Plaintiff’s claims against defendants Vashaw, Lamentola,

Carl, Walworth, Jacobs, and Dyer are based upon their supervisory roles
over other defendants and must be dismissed. It is well-settled that a
civil rights plaintiff must allege the personal involvement of a defendant
to state a claim under 42 U.S.C. § 1983 and that liability cannot be based
upon a theory of respondeat superior or vicarious liability.

See Monell

v. Department of Social Svs., 436 U.S. 658, 691-92 (1978); Everson v. Leis,
556 F.3d 484, 495 (6th Cir. 2009); see also Taylor v. Michigan Dep't of
Corr., 69 F.3d 76, 80-81 (6th Cir. 1995) (plaintiff must allege facts
showing that the defendant participated, condoned, encouraged, or
knowingly acquiesced in alleged misconduct to establish liability).
Thus, to the extent that Plaintiff alleges that the foregoing defendants,
or any others, should be liable for another individual’s conduct, he fails
to state a claim upon which relief may be granted. Any assertion that
one or more of the defendants failed to supervise an employee, should be
vicariously liable for an employee s conduct, and/or did not sufficiently
4

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respond to the situation is insufficient to state a claim under § 1983.

See

Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Martin v.
Harvey, 14 F. App’x 307, 309 (6th Cir. 2001).
Second, to the extent that Plaintiff asserts that one or more of the
defendants, namely defendants San Pedro Salinas, Vashaw, Lamentola,
Carl, Walworth, Jacobs, and Dyer, violated his constitutional rights by
denying his grievances or complaints, he fails to state a claim for relief.
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.”). An inmate does not have
a constitutionally protected interest in a jail or prison grievance
procedure or the right to an effective procedure.

Walker v. Michigan

Dep t of Corrections, 128 F. App x 441, 445 (6th Cir. 2005); Argue v.
Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003) (citing cases).
5

To the

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extent that Plaintiff is dissatisfied with the investigation of his
complaints and/or the responses to his grievances, he fails to state a claim
upon which relief may be granted.

See Carlton v. Jondreau, 76 F. App x

642, 644 (6th Cir. 2003); Proctor v. Applegate, 661 F. Supp. 2d 743, 766-67
(E.D. Mich. 2009) (Borman, J., adopting magistrate judge s report).
Third, to the extent that Plaintiff alleges that the defendants
violated Michigan Department of Corrections (“MDOC”) or prison
policies (or other state law), he fails to state a claim upon which relief
may be granted under § 1983.

It is well-settled that violations of state

law or policy do not provide a basis for relief under § 1983.

See, e.g.,

Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (claims under §
1983 can only be brought for “deprivation of rights secured by the
constitution and laws of the United States”).
provide redress for violations of state law.

Section 1983 does not

Pyles v. Raisor, 60 F.3d 1211,

1215 (6th Cir. 1995).
Fourth, to the extent that Plaintiff asserts that his rights were
violated due to verbal harassment, he fails to state a claim upon which
relief may be granted.

Allegations of verbal harassment and threats are

insufficient to state a civil rights claim under § 1983.

See 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) (“Verbal harassment or idle
threats by a state actor do not create a constitutional violation and are
6

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insufficient to support a section 1983 claim....”); 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 by a corrections officer to assault an

inmate do not violate an inmate s constitutional rights.

Miller v.

Wertanen, 109 F. App x 64, 65 (6th Cir. 2004). Verbal threats and abuse
made in retaliation for filing grievances are also not actionable.

Carney

v. Craven, 40 F. App’x 48, 50 (6th Cir. 2002). Any claims alleging verbal
harassment must therefore be dismissed.
Fifth, Plaintiff fails to state an Eighth Amendment claim arising
from the searches of his cell.

Prison cell searches are a critical part of

prison security and prisoners do not have a protected liberty interest to
be free from cell searches.
(1984).

See generally Hudson v. Palmer, 468 U.S. 517

Prisoner also do not have a legitimate expectation of privacy

such that “the Fourth Amendment s proscription against unreasonable
searches does not apply within the confines of the prison cell.” Id. at
526.

To state an Eighth Amendment claim for cruel and unusual

punishment, an inmate must show that he or she has been subject to the
“unnecessary and wanton infliction of pain” or has been deprived “of the
minimal civilized measure of life s necessities.”

Rhodes v. Chapman,

452 U.S. 337, 346-47 (1981); see also Hudson v. McMillian, 503 U.S. 1, 9
7

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(1992).
In this case, even if Plaintiff s allegation that defendant Myers (or
any other defendant) searched his cell four times over two months leaving
it in disarray and damaging his property (hygiene items/soap, pictures)
to harass him is true, such conduct, while unprofessional, is insufficient
to establish cruel and unusual punishment under the Eighth
Amendment.

See Rafferty v. Trumbull Cty., Ohio, 915 F.3d 1087,

1093-94 (6th Cir. 2019) (“The Eighth Amendment prohibition on cruel
and unusual punishment protects prisoners from the unnecessary and
wanton infliction of pain.”); George v. Ballard, No. 17-5161, 2017 WL
7550768, *2 (6th Cir. Aug. 23, 2017) (“We have consistently recognized
that harassing behavior from prison officials does not alone rise to the
level of cruel and unusual punishment.”); Johnson v. Dellatifa, 357 F.3d
539, 545-46 (6th Cir. 2004) (harassing behavior was insufficient to
establish an Eighth Amendment violation); see also Roper v. Johnson, No.
2:19CV02061, 2020 WL 224601, *2-3 (N.D. Ohio Jan. 15, 2020)
(dismissing prisoner’s claim that search of his cell and destruction of his
property constituted cruel and unusual punishment); Williams v.
Washington, No. 2:18-cv-144, 2018 WL 6190497, *12 (W.D. Mich. Nov.
28, 2018) (frequent cell searches and pat downs did not rise to the level
of an Eighth Amendment violation); Wiley v. Kentucky Dep t of Corr., No.
CVI. A. 11-97-HRW, 2012 WL 5878678, *12 (citing Johnson, 357 F.3d at
8

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545-46, and ruling that prisoner s allegation that prison official searched
his cell to harass him, not to maintain security, fails to state a plausible
claim for cruel and unusual punishment under the Eighth Amendment).
As the Sixth Circuit has stated, “not every unpleasant experience a
prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.”
F.2d at 954.

Ivey, 832

Plaintiff fails to state a claim upon which relief may be

granted as to this issue.
Sixth, to the extent that Plaintiff asserts that his rights were
violated because his prison cell was left in disarray and some of his
hygiene items or other property was damaged, he fails to state a claim
upon which relief may be granted under § 1983.

The negligent or

intentional deprivation of a prisoner’s property does not violate due
process if adequate state remedies are available to redress the wrong.
Hudson v. Palmer, 468 U.S. 517, 533 (1984).

To maintain a § 1983

action “claiming the deprivation of a property interest without
procedural due process of law, the plaintiff must plead and prove that
state remedies for redressing the wrong are inadequate.”
Walton, 721 F.2d 1062, 1066 (6th Cir. 1983).

Vicory v.

Plaintiff neither alleges

nor establishes that Michigan’s judicial remedies are inadequate or that
it would be futile to present his claim in the state courts. A prisoner
may petition the Prisoner Benefit Fund for compensation, MDOC Policy
9

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Directive 04.07.112,

B (eff. Dec. 12, 2013), submit a claim for property

loss of less than $1,000 to the State Administrative Board, Mich. Comp.
Laws

600.6419; MDOC Policy Directive 03.02.131 (effective Oct. 21,

2013), and/or bring a tort or contract action in the Court of Claims
“against the state and any of its departments, commissions, boards,
institutions, arms, or agencies,” Mich. Comp. Laws

600.6419(1)(a).

The Sixth Circuit has ruled that Michigan provides adequate postdeprivation remedies for property loss.
F.3d 476, 479 (6th Cir. 1995).

See Copeland v. Machulis, 57

Plaintiff thus fails to state a claim upon

which relief may be granted as to this issue.
Seventh, the defendants, who are employees of the MDOC, are
entitled to Eleventh Amendment immunity on Plaintiff s claims against
them in their official capacities.

The Eleventh Amendment to the

United States Constitution bars civil rights actions against a State and
its agencies and departments unless the State has waived its immunity
and consented to suit or Congress has abrogated that immunity.
Michigan Dep t of State Police, 491 U.S. 58, 66 (1989).

Will v.

The State of

Michigan has not consented to being sued in civil rights actions in federal
court, Johnson, 357 F.3d at 545 (citing Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986)), and Congress did not abrogate state sovereign
immunity when it enacted 42 U.S.C. § 1983.

Quern v. Jordan, 440 U.S.

332, 341 (1979); Chaz Const., LLC v. Codell, 137 F. App x 735, 743 (6th
10

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Cir. 2005). Eleventh Amendment immunity “bars all suits, whether for
injunctive, declaratory or monetary relief” against a State and its
agencies.

McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012)

(quoting Thiokol Corp. v. Dep t of Treasury, 987 F.2d 376, 381 (6th Cir.
1993)), but does not preclude prospective injunctive relief.

McCormick,

693 F.3d at 662 (citing McKey v. Thompson, 226 F.3d 752, 757 (6th Cir.
2000)).

Eleventh Amendment immunity applies to state employees who

are sued in their official capacities.

See Hafer v. Melo, 502 U.S. 21, 25

(1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); Colvin v.
Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574
F.3d 334, 344 (6th Cir. 2009)).
The MDOC, a Michigan government agency, is entitled to Eleventh
Amendment immunity.

See Harrison, 722 F.3d at 771 (citing cases);

Horton v. Martin, 137 F. App x 773, 775 (6th Cir. 2005). The defendants,
who are employees of the MDOC and are sued (in part) in their official
capacities, are thus entitled to Eleventh Amendment immunity.
Will, 491 U.S. at 70-71; Johnson, 357 F.3d at 545.

See

Plaintiff s claims for

monetary damages and non-prospective injunctive relief against the
defendants in their official capacities must therefore be dismissed.
Lastly, to the extent that Plaintiff alleges that the cell searches
were conducted in retaliation for his filing of grievances or complaints
and identifies defendants Myers, Ernesto Salinas, and Hull as
11

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responsible for those actions, he states a plausible claim under the First
Amendment.

Such claims are not subject to summary dismissal.

While Plaintiff may or may not ultimately prevail on his retaliation
claims, he pleads sufficient facts to state potential claims for relief.
III. CONCLUSION
For the reasons stated, the Court concludes that Plaintiff fails to
state a claim upon which relief may be granted under § 1983 against
defendants San Pedro Salinas, Vashaw, Lamentola, Carl, Walworth,
Jacobs, and Dyer.

Accordingly, the Court DISMISSES those

defendants from this action.

The Court also concludes that Plaintiff

fails to state claims upon which relief may be granted under § 1983
concerning the denial of his grievances, alleged violations of MDOC or
prison policies (or other state law), alleged Eighth Amendment violations
for verbal or cell search harassment, and the destruction of his property.
Accordingly, the Court DISMISSES those claims from this action.
The Court further concludes that the defendants are entitled to
Eleventh Amendment immunity.

Accordingly, the Court DISMISSES

Plaintiff s claims for monetary damages and non-prospective injunctive
relief against the defendants in their official capacities.
Additionally, the Court concludes that Plaintiff s claims against the
remaining defendants, Ernesto Salinas, Hull, and Myers, alleging that
the cell searches were retaliatory survive the Court’s initial screening
12

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under 28 U.S.C.§§ 1915(e)(2)(b) and 1915A and are not subject to
summary dismissal.
Lastly, the Court concludes that an appeal from this decision
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: January 18, 2022

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

13