Cummings #417330 v Caruso, et al

Filing 7

OPINION; Judgment to enter; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WALTER CUMMINGS,
Plaintiff,

Case No. 1:11-cv-434

v.

Honorable Janet T. Neff

PATRICIA CARUSO et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, Plaintiff’s action will be dismissed for failure to state
a claim.

Factual Allegations
Petitioner Walter Cummings presently is incarcerated with the Michigan Department
of Corrections (MDOC) and housed at the Lakeland Correctional Facility, though the actions he
complains of occurred while he was housed at the Muskegon Correctional Facility (MCF). He sues
MDOC Director Patricia L. Caruso, the unknown director of Prison Health Services, Inc., and the
following MCF employees: Warden Shirlee Harry; Deputy Warden Michael Singleton; Assistant
Deputy Wardens Shawn Brewer, Sharon Walker, and Sharon Wells; Classification Director Mario
Vialpando; Grievance Coordinator Matt Brevard; Corrections Officer W.A. Wright; Health Unit
Manager Mike Whalen; Physician Assistant Thomas A. LaNore; Supervisor of Nursing Mary
Hubbell; and Nurse Amy S. Meyer.
According to Plaintiff’s complaint and affidavit, he has had a documented history of
diabetes since July 2002. He also has a documented history of chronic pain and arthritis in his right
knee, hip and lower back since July 30, 2002, which was supported by x-rays taken in February
2005. Plaintiff also was seen in radiology on July 17, 2002, where he was diagnosed with chronic
obstructive pulmonary disease. On June 26, 2002, Plaintiff’s records reflected that he had job
restrictions due to his conditions. On April 6, 2007, a physician assistant restricted Plaintiff from
weight lifting, other exercise or work until further notice. In addition, a special accommodation
notice was issued on April 24, 2007.
On October 10, 2007, Plaintiff experienced a sudden hypoglycemic attack. On May
1, 2008, during a special needs identification screening, Plaintiff was described as needing a low
bunk on a low gallery, having a slow walk, and requiring lifting restrictions. Plaintiff injured his
lower back on May 6, 2008, while trying to climb into his upper bunk. He filed a grievance the

-2-

following day. The grievance was denied at Step I by Defendants Brevard and Singleton.
Defendant Harry denied the Step II grievance on May 30, 2008.
On September 30, 2008, Plaintiff fell on the floor because of low blood sugar. He
injured his head and lower back. The Endocrine-Chronic Care Clinic noted on November 19, 2008,
that Plaintiff’s pain in his lower legs was attributable to diabetic neuropathy. Plaintiff again injured
his back on December 18, 2008, when he fell on the ice. He was still having lower back pain on
January 15, 2009, when he was assessed in nurse protocol.
Plaintiff complains that, when he arrived at MCF in May 2008, he was not reassigned
to a new job chronologically, as required by policy. See MICH. DEP’T OF CORR., Policy Directive
05.01.100, ¶ T (eff. Nov. 1, 2010). As a consequence, Plaintiff was not assigned to a job until May
2009. In addition, the job assignment was not made in accordance with policy because medical
information was not obtained before he was classified to his yard job. Plaintiff contends that
Defendants LaNore, Whalen and Hubbell all failed to notify the classification director of Plaintiff’s
medical restrictions.
On May 10, 2009, Plaintiff was notified of a job assignment to the yard crew. He
reported to his assignment the following day, where he informed his supervisor of his health
problems. Plaintiff sent a kite to health care about his inability to perform the assigned work, and
he wrote to Defendants Harry and Vialpando on May 12, asking to be reclassified because of his
health conditions and prior injuries, citing a violation of MICH. DEP’T OF CORR., Policy Directive
05.01.100, ¶ L. That same date, he requested health care treatment for his back, which he had
reinjured while attempting to perform the assigned work. Officer Irby sent Plaintiff to health care,
and Nurse Blohm treated his lower back problem with warm compresses and ibuprofen.

-3-

Nevertheless, Plaintiff appeared for work the following day and attempted to perform the job
assignment. He again injured his back and was picked up from his job by health care. Defendant
LaNore placed Plaintiff on lay-in status and issued a five-day medical detail for back rest. Plaintiff
also was given a wheelchair for use during his medical detail. Plaintiff asked for pain medication
on May 14, as the result of continuing pain. On May 18, 2009, Defendant Nurse Meyer made an
entry in the medical progress note indicating that Plaintiff had been observed getting around in the
unit. Plaintiff’s wheelchair accommodation was replaced by an authorization to use a cane between
May 18, 2009 and June 18, 2009. Plaintiff complained to health services on May 19 that his
medication was not stopping the pain. He complained again on May 21. Plaintiff makes no
allegations that he was denied medication.
On May 22, 2009, Plaintiff reported for work using a cane. Defendant Wright
assigned Plaintiff to mow the yard with a push lawn mower. Wright advised Plaintiff to either
perform the job or to sign an assignment waiver. Plaintiff did not wish to sign the assignment
waiver, as it would have resulted in his being placed on “OO status,”1 which would have required
him to remain in his cell during normal working hours. Plaintiff did not immediately comply and
advised Wright that he wished to return to his unit and seek input from health care. Defendant
Wright issued him a major misconduct ticket for disobeying a direct order and being out of place.
Wright also filled out an assignment waiver form indicating that Plaintiff had refused to perform his
job. Plaintiff contends that he never refused the assignment. Plaintiff was placed on OO status on
May 23. Plaintiff filed a grievance about being wrongly classified under MDOC policy. On June

1

“OO status” is a commonly used prisoner reference to unemployable status as defined under MICH. DEP’T OF
CORR., Policy Directive 05.01.100, ¶ W. Unemployable prisoners are not “permitted to participate in any more leisure
time activities than those who work full time.” Id. at ¶ Y The restriction does not apply to prisoners “who are
unemployable due to medical restrictions . . . .” Id.; see also Policy Directive 05.01.100 at ¶ W.

-4-

9, 2009, Plaintiff was found not guilty of the major misconduct. Plaintiff complains, however, that
he was never reclassified after being found not guilty, in violation of MDOC policy. MICH. DEP’T
OF CORR.,

Policy Directive 05.01.100, ¶ CC. As a result, he was on OO status for more than 80

days. Plaintiff wrote Defendant Caruso about being unfairly placed on OO status.
Plaintiff complains that, based on the recommendation of Defendants Brevard and
Singleton, Defendant Harry placed Plaintiff on modified access status on July 13, 2009, for filing
two rejected grievances.2 Plaintiff also complains that Defendants Hubbell, Whalen, Harry, Brewer,
Singleton, Brevard and Caruso denied several of Plaintiff’s grievances. In addition, he complains
that Defendants Caruso, Harry, Brewer, Vialpando, Brevard, Wright, LaNore, Wells, Whalen,
Hubbell, Meyer, Walker and the unknown director of Prison Health Services violated his right to
due process under the Fourteenth Amendment by conspiring to disregard his complaints about being
improperly placed and kept on OO status. He also contends that Defendants were negligent and
deliberately indifferent to his medical needs, in violation of the Eighth Amendment and the
Americans with Disabilities Act (ADA). For relief, Petitioner seeks compensatory and punitive
damages and injunctive relief.

2

Under Michigan Department of Corrections policy, a prisoner is placed on modified access for filing “an
excessive number of grievances which are frivolous, vague, duplicative, non-meritorious, raise non-grievable issues, or
contain prohibited language . . . or [are] unfounded . . . .” MICH. DEP’T OF CORR., Policy Directive 03.02.130, ¶ HH
(eff. July 9, 2007). The modified access period is ninety days and may be extended an additional thirty days for each
time the prisoner continues to file a prohibited type of grievance. Id. While on modified access, the prisoner only can
obtain grievance forms through the Step I coordinator, who determines whether the issue is grievable and otherwise
meets the criteria under the grievance policy. Id. at ¶ KK.

-5-

Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if “‘it fails 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) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). The court must determine whether the complaint contains
“enough facts to state a claim to relief that is plausible on its face.” 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.” Iqbal, 129 S. Ct.
at 1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Id. 1950 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill v. Lappin, 630
F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to
dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.

-6-

Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Plaintiff’s allegations against the various Defendants fail to state a claim for
numerous reasons.
A.

Placement on Unemployable Status
1.

Due Process

Plaintiff alleges that Defendants deprived him of his right to procedural due process
by failing to assign him to suitable prison employment on a timely basis and by improperly placing
him on unemployable status when he could not physically perform his work assignment. Plaintiff
also contends that his placement on unemployable status was in violation of MDOC policy
directives. He contends that, because he was physically unable to work, he should have been exempt
from unemployable status under MICH. DEP’T OF CORR., Policy Directive 05.01.100, ¶¶ X, Y (stating
that unemployable status and associated restrictions do not apply to prisoners who are unemployable
due to medical restrictions).
Defendant’s alleged failure to comply with an administrative rule or policy does not
itself rise to the level of a constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir.
2007); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d
232, 240 (6th Cir. 1992). Section 1983 is addressed to remedying violations of federal law, not state
law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d at 580-81. As a
consequence, Plaintiff’s due process claim based on the violation of state policy is without merit.

-7-

Moreover, Defendants’ decision to place Plaintiff on unemployable status does not
rise to the level of a due process violation. “The Fourteenth Amendment protects an individual from
deprivation of life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d
795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due process violation,
a plaintiff must show that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221
(2005). Analysis of a procedural due process claims involves two steps: “the first asks whether
there exists a liberty or property interest which has been interfered with by the State; the second
examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”
Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). The Supreme Court long has held that
the Due Process Clause does not protect every change in the conditions of confinement having an
impact on a prisoner. See Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515
U.S. 472, 484 (1995), the Court set forth the standard for determining when a state-created right
creates a federally cognizable liberty interest protected by the Due Process Clause. According to
the Sandin Court, a prisoner is entitled to the protections of due process only when the sanction “will
inevitably affect the duration of his sentence” or when a deprivation imposes an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515
U.S. at 486-87; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown,
62 F.3d 789, 790-91 (6th Cir. 1995). The Sandin Court concluded that mere placement in
administrative segregation did not implicate a liberty interest because the segregation at issue in that
case did not impose an atypical and significant hardship. Sandin, 515 U.S. at 484; Wilkinson v.
Austin, 545 U.S. 209, 222-23 (2005).

-8-

To the extent that Plaintiff complains that he was not assigned to an appropriate job
consistent with his health restrictions, Plaintiff fails to state a claim. The Sixth Circuit has
consistently found that prisoners have no constitutionally protected liberty interest in prison
employment under the Fourteenth Amendment. See, e.g., Dellis v. Corr. Corp. of Am., 257 F.3d
508, 511 (6th Cir. 2001) (district court properly dismissed as frivolous the plaintiff’s claim that he
was fired from his prison job); Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989) (no
constitutional right to prison employment); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (“[N]o
prisoner has a constitutional right to a particular job or to any job.”).
Moreover, to the extent that Plaintiff complains that his placement on unemployable
status was implemented without due process, he also fails to identify an interest of constitutional
magnitude. Plaintiff’s unemployable status results in his leisure activities being limited to the
amount allowed to other prisoners working full time. Such a restriction falls far short of being either
atypical or significant. See Williams v. Straub, 26 F. App’x 389, 390-91 (6th Cir. 2001) (placement
on unemployable status does not require a hearing to accord with due process). Indeed, it is
apparent from the restriction itself that the limitation is completely typical, as the limits, by
definition, are the same as those for working prisoners.
In sum, Plaintiff has no liberty interest in his placement on unemployable status. As
a consequence, he fails to state a procedural due process claim.
2.

Eighth Amendment

Plaintiff complains that his assignment to yard duty amounted to cruel and unusual
punishment, in light of his serious medical limitations. He alleges that Defendants forced him to
work in a job that he was physically unable to perform and caused him to reinjure his back

-9-

attempting to comply. In addition, Plaintiff complains that his placement on unemployable status
violated the Eighth Amendment.
The Eighth Amendment imposes a constitutional limitation on the power of the states
to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346).

The deprivation alleged must result in the denial of the “minimal

civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148
F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of
essential food, medical care, or sanitation” or “other conditions intolerable for prison confinement.”
Rhodes, 452 U.S. at 348 (citation omitted). “Not every unpleasant experience a prisoner might
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the
Eighth Amendment.” Ivey, 832 F.2d at 954.
An Eighth Amendment claim for the deprivation of adequate medical care has an
objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy
the objective component, the plaintiff must allege that the medical need at issue is sufficiently
serious. Id. In other words, the inmate must show that he is incarcerated under conditions posing
a substantial risk of serious harm. Id. The objective component of the adequate medical care test
is satisfied “[w]here the seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay
person.” Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004). If, however, the need
involves “minor maladies or non-obvious complaints of a serious need for medical care,”

- 10 -

Blackmore, 390 F.3d at 898, the inmate must “place verifying medical evidence in the record to
establish the detrimental effect of the delay in medical treatment.” Napier v. Madison County, 238
F.3d 739, 742 (6th Cir. 2001).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
Plaintiff’s claims do not demonstrate any deprivation of medical care, much less that
Defendants were deliberately indifferent to Plaintiff’s obvious serious medical needs. According
to Plaintiff’s own allegations, he regularly was treated for his back complaints, and he fails to
identify any occasion on which his need for treatment was ignored. After he was injured, he was
seen in health care, given a medical detail excusing him from work, provided the temporary use of
a wheelchair, and subsequently given a cane. He alleges no occasion on which a Defendant denied
him needed care. Further, no Defendant ever forced Plaintiff to work in the yard. Plaintiff was
merely assigned to a job, which he had the option of refusing to perform. Although his refusal could
have resulted in his placement on unemployable status and limited his leisure activities, being faced
with such a choice does not constitute deliberate indifference to Plaintiff’s serious medical needs.
Moreover, mere placement on unemployable status does not amount to cruel and
unusual punishment. Plaintiff's allegations do not involve a deprivation of food, medical care or

- 11 -

sanitation or another intolerable prison condition. See Rhodes, 452 U.S. at 348. He alleges only that
he should not be subjected to the limitations on leisure activities that are placed on other
unemployable prisoners. The Eighth Amendment does not entitle Plaintiff to a particular program
or classification status simply because he has medical conditions. Instead, the amendment entitles
him to constitutionally adequate medical care for his condition and other minimally adequate
necessities. Id. at 347. Custody restrictions that are limiting or even harsh, but are not cruel and
unusual under contemporary standards, are not unconstitutional. Id. Thus, federal courts may not
intervene to remedy conditions that are merely unpleasant or undesirable. The courts routinely have
held that even placement in segregation is a routine discomfort that is “‘part of the penalty that
criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9
(1992) (quoting Rhodes, 452 U.S. at 347). Plaintiff alleges a far less restrictive confinement than
segregation. His allegations therefore fail to state an Eighth Amendment claim.
3.

ADA

Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. To make out a prima facie case under Title II of the ADA, a plaintiff must establish
that (1) he has a disability; (2) he is otherwise qualified; and (3) he is being excluded from
participation in, being denied the benefits of, or being subjected to discrimination under the program
solely because of his disability. Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005)
(citing Jones v. City of Monroe, 341 F.3d 474, 477 (6th Cir. 2003)). Therefore, in the instant case,
in order to state a claim under Title II of the ADA, Plaintiff must show that he is a “qualified

- 12 -

person,” that his health problems constitute a “disability,” that exemption from OO status is a
“service, program, or activity” of the state, and that he is being denied the exemption solely on the
basis of his disability.
Although Plaintiff mentions the ADA in the body of his complaint, he fails to set
forth any factual allegations that would demonstrate either that he has a disability within the
meaning of the statute, that OO status is a program of the state, or that he is being denied an
exemption from OO status solely because of that disability. Further, he fails entirely to specify
which of Defendants’ actions caused the denial of those rights. Conclusory allegations of unlawful
conduct without specific factual allegations fail to state a claim. See Iqbal, 129 S. Ct. at 1949-50;
Twombly, 550 U.S. at 555. Plaintiff therefore fails to set forth an ADA claim.
B.

Conspiracy

Even assuming that Plaintiff could state a claim against a Defendant, his conspiracy
claim would be without merit. Plaintiff alleges that all Defendants conspired to deny him his rights
under the Eighth Amendment, the Due Process Clause and the ADA. To state a claim for
conspiracy, a plaintiff must plead with particularity, as vague and conclusory allegations
unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that
allegations of conspiracy must be supported by allegations of fact that support a “plausible
suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir.
2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534,
1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985). A plaintiff’s allegations
must show (1) the existence or execution of the claimed conspiracy, (2) overt acts relating to the
promotion of the conspiracy, (3) a link between the alleged conspirators, and (4) an agreement by

- 13 -

the conspirators to commit an act depriving plaintiff of a federal right. Lepley v. Dresser, 681 F.
Supp. 418, 422 (W.D. Mich. 1988). “[V]ague allegations of a wide-ranging conspiracy are wholly
conclusory and are, therefore, insufficient to state a claim.” Hartsfield v. Mayer, No. 95-1411, 1196
WL 43541, at *3 (6th Cir. Feb. 1, 1996). A simple allegation that defendants conspired to cover up
wrongful actions is too conclusory and too speculative to state a claim of conspiracy. Birrell v.
Michigan, No. 94-2456, 1995 WL 355662, at *2 (6th Cir. June 13, 1995).
Plaintiff’s allegations of conspiracy are conclusory and speculative. Plaintiff has
provided no allegations establishing a link between the alleged conspirators or any agreement
between them. See Twombly, 550 U.S. at 556 (requiring factual allegations); see also Iqbal, 129 S.
Ct. at 1250. Moreover, as previously discussed, since Plaintiff neither fails to adequately allege that
any Defendant violated his federal rights, Plaintiff cannot demonstrate that any alleged agreement
was intended to deprive him of a federal right.
C.

Supervisory Liability and Denial of Grievances

Further, numerous Defendants are entitled to dismissal from the complaint because
Plaintiff fails to allege that they engaged in active unconstitutional conduct. Plaintiff alleges that
Defendants Hubbell, Whalen, Harry, Brewer, Singleton, Brevard, and Caruso improperly denied
several of Plaintiff’s grievances. He also alleges that Defendants Caruso, Harry, Brewer, Vialpando,
Brevard, Wright, LaNore, Wells, Whalen, Hubbell, Meyer, and Walker failed to respond to his
complaints about his classification.

Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Iqbal, 129 S. Ct. at 1948; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation

- 14 -

must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir.
2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not
enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at
575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover,
§ 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). “[A] plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.
Plaintiff has failed to allege that Defendants Caruso, Harry, Brewer, Vialpando, Brevard, Wright,
LaNore, Wells, Whalen, Hubbell, Meyer, Walker, Singleton, or Brewer engaged in any active
unconstitutional behavior by failing to respond to his complaints or deny his grievances.
D.

Placement on Modified Grievance Access

In addition, to the extent that Plaintiff complains that Harry, Brevard and Singleton
improperly placed him on modified access, he fails to state a claim. Plaintiff has no due process
right to file a prison grievance. The Sixth Circuit and other circuit courts have held that there is no
constitutionally protected due process right to an effective prison grievance procedure. Walker v.
Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Young v. Gundy, 30 F. App’x 568,
569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb.
7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994). Michigan law does not create a liberty interest in the grievance procedure.
See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Wynn v. Wolf, No. 93-2411, 1994 WL 105907,

- 15 -

at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process,
Defendants’ conduct did not deprive him of due process.
Moreover, even if Plaintiff had been improperly prevented from filing a grievance,
his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit)
cannot be compromised by his inability to file an institutional grievances. See, e.g., Lewis v. Casey,
518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement
only mandates exhaustion of available administrative remedies.

See 42 U.S.C. § 1997e(a). If

Plaintiff were improperly denied access to the grievance process, the process would be rendered
unavailable, and exhaustion would not be a prerequisite for initiation of a civil rights action.
Plaintiff therefore fails to state a cognizable claim based on his placement on modified access.
E.

Director of Prison Health Services

Beyond being listed as a conspirer with the other Defendants, the unknown director
of Prison Health Services is not named in the body of the complaint, except to the extent that he is
alleged to have been one of the conspirators. It is a basic pleading essential that a plaintiff attribute
factual allegations to particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order
to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the
claim). Where a person is named as a defendant without an allegation of specific conduct, the
complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints.
See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing complaint
where plaintiff failed to allege how any named defendant was involved in the violation of his rights);
Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s claims where
complaint did not allege with any degree of specificity which of the named defendants were

- 16 -

personally involved in or responsible for each alleged violation of rights). Because Plaintiff’s
allegations fall far short of the minimal pleading standards under FED. R. CIV. P. 8 (requiring “a
short and plain statement of the claim showing that the pleader is entitled to relief”), his complaint
against the unknown Director of Prison Health Services must be dismissed.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: June 14, 2011

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

- 17 -