Burke #148917 v. Lawrence et al
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:11-cv-1044
Honorable Robert Holmes Bell
D. LAWRENCE et al.,
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, and Plaintiff has paid the initial
partial filing fee. 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.
Plaintiff Elijah Burke presently is incarcerated with the Michigan Department of
Corrections (MDOC) and housed at the Lakeland Correctional Facility (LCF). He sues the following
Food Service Assistant Director D. Lawrence; Classification Director S.
Mittlestadt; and Food Service Supervisor Leaders (unknown) O’Dell and (unknown) Whitehead.
Plaintiff’s complaint consists of a series of conclusory legal claims, together with his
demands for relief. (Compl., docket #1.) In an attached affidavit, Plaintiff sets forth his factual
allegations. (Pl. Aff. in Supp. of Compl., docket #2.)
According to the factual allegations of the affidavit, Plaintiff was employed for ten
years in the food service department at LCF. On April 15, 2011, Plaintiff was issued a Class II
misconduct for theft, after he was found leaving work with several slices of cheese. When he got
to work the following day, April 16, 2011, Plaintiff was informed by food service officer Robinson
that he had been “laid in”1 from work by Defendant Lawrence, pending the outcome of his
misconduct hearing. Plaintiff attempted to explain that, under prison policy, he could only be laid
in by the warden or his designee and only if he was deemed a threat to the safety or security of the
prison, citing MICH . DEP ’T OF CORR., Policy Directive 05.01.100. Plaintiff therefore contended that
his lay-in was in violation of MDOC policy. Robinson reportedly stated, “It was not my choice, it
was the Assistant Director Lawrence’s call.” (Id., ¶ 10, Page ID#8.) Plaintiff complains that he
never received a written notice from the classification director that he was being laid in.
The term “laid in” refers to a prisoner being temporarily suspended from his prison job assignment. Prisoners
charged with misconducts may be laid in pending the misconduct hearing. M ICH . D EP ’T O F C O RR ., Policy Directive
05.01.100, ¶ AA (eff. Nov. 1, 2010) (superseded).
On April 16, 2011, Plaintiff wrote a complaint to Deputy Warden Hoffner regarding
Defendants’ allegedly improper application of MDOC policy. On April 18, 2011, while he was
going through the food line, Plaintiff spoke with Defendant Lawrence, asking, “Why am I being
removed from my job, against the dictates of policy. Surely, I’m not a threat to the safety and
security of the facility.” (Id., ¶13.) Lawrence replied, “Well Mr. Burke, you writing and
complaining up front (i.e., Deputy Warden’s Office), didn’t make your situation any better.” (Id. at
¶ 14.) On April 21, 2011, Plaintiff received a Prisoner Program Work Assignment Evaluation
notice, recommending that he be terminated from food service, because he had been found guilty of
misconduct. The notice was signed by Defendants Whitehead and Lawrence. (Id., ¶ 17, Page ID#9.)
Later that day, Plaintiff received a notice from Defendant Classification Director Mittlestadt,
informing him that he was being permanently removed from the food service hiring pool because
he had two or more guilty findings on theft misconduct charges while employed in food service. (Id.,
¶ 18; see also Ex. A5 to Aff., Page ID#17.) Plaintiff complains that his termination was in violation
of policy and that he had no prior notice that he could be permanently removed from food service
employment for two theft misconducts. He also alleges that Defendants’ actions were taken in order
to eliminate Plaintiff’s eligibility for bonus pay, which was no longer available to food service
employees hired after December 4, 2008. In addition, he contends that he was terminated in
retaliation for his April 16 complaint to Deputy Warden Hoffner about how the classification policy
was being applied.
Plaintiff filed a Step I grievance on April 25, 2011, alleging that Defendants had
conspired with one another to retaliate against him. On May 27, Defendant Classification Director
Mittlestadt posted a memorandum notice, which stated that “any prisoner found guilty of a
misconduct for theft while on food service assignment, will never be hired back at LCF.” (Id., ¶ 24,
Page ID#10.) Plaintiff complains that Defendant Lawrence knew that Plaintiff’s job was very
important to him and that Plaintiff used his wages to pay for his phone calls and to pay his attorney.
In his complaint, Plaintiff asserts that Defendants actions violated his right to petition
the government under the First and Fourteenth Amendments of the United States Constitution and
under the Petition Clause of the Michigan Constitution, MICH . CONST . 1963, art. 1, § 3. He also
alleges that Defendants’ actions amounted to gross negligence and intentional infliction of emotional
distress under state law.
For relief, Petitioner seeks a declaratory judgment, together with compensatory and
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 Atl. 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.” Iqbal, 129 S. Ct. at 1949
(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.” Iqbal, 129 S. Ct. at 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. 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).
The sole federal claim expressly listed in Plaintiff’s complaint is that Defendants
retaliated against him for complaining about the allegedly improper enforcement of MDOC policy,
and they conspired to do so. Retaliation based upon a prisoner’s exercise of his or her constitutional
rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en
banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that:
(1) he was engaged in protected conduct; (2) an adverse action was taken against him that would
deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was
motivated, at least in part, by the protected conduct. Thaddeus-X, 175 F.3d at 394. Moreover, a
plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating
factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037
(6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
Assuming that Plaintiff’s allegations establish the first two prongs of the test, Plaintiff
fails to allege facts supporting the motivation prong. It is well recognized that “retaliation” is easy
to allege and that it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420
F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v.
DeRobertis, 598 F. Supp. 501, 506 (C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985).
“[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108.
“[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient
to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826
F.2d 1534, 1538-39 (6th Cir. 1987)); see also Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir.
2004) (without more, conclusory allegations of temporal proximity are not sufficient to show a
retaliatory motive); see also Iqbal, 129 S. Ct. at 1949 (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”).
Plaintiff’s allegations of retaliation are unsupported by the facts alleged in the
complaint. He appears to allege that, because the suspension and ultimate termination from his
position were close in time to when he complained to Deputy Warden Hoffner and filed his
grievance about the misapplication of policy, Defendants’ motive must have been retaliatory.
While temporal proximity may, in some circumstances, be “‘significant enough to
constitute indirect evidence of a causal connection so as to create an inference of retaliatory
motive,’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter,
358 F.3d 408, 422 (6th Cir. 2004)), “[c]onclusory allegations of temporal proximity are not sufficient
to show a retaliatory motive.” Skinner, 89 F. App’x at 580. Moreover, Plaintiff’s own allegations
about the timing of the events belies any inference of retaliatory motive. Plaintiff acknowledges that
he was issued a misconduct ticket for theft on April 15, 2011, for which he ultimately was convicted.
Plaintiff does not dispute that he committed the misconduct. He was immediately suspended from
his position by Defendants O’Dell and Lawrence on the morning of April 16, 2011, pending the
outcome of the misconduct charge. Plaintiff’s first alleged protected conduct – the writing of the
complaint to Assistant Deputy Warden Hoffner – did not happen until later in the day on April 16,
after Plaintiff had been suspended. Although Defendant Lawrence told Plaintiff that his complaining
would not help his situation, the comment was not made until April 18. It therefore cannot support
a conclusion that O’Dell’s and Lawrence’s original decision to suspend Plaintiff was retaliatory. In
sum, the decision to suspend Plaintiff from his position could not have been motivated by his
subsequent complaint to Deputy Warden Hoffner. Moreover, Plaintiff did not file a grievance until
April 25, 2011, four days after he was permanently terminated from food service. As a consequence,
the filing of the grievance could not have served as the motive for either the suspension or the
Further, Plaintiff alleges insufficient facts to indicate that he was terminated for
complaining to Deputy Warden Hoffner. Defendant Lawrence’s comment regarding Plaintiff’s
complaint to the Deputy Warden is far too thin a thread on which to support a “reasonable inference”
that [Defendants are] liable for the misconduct alleged.” See Iqbal, 129 S. Ct. at 1949. Prior to
Plaintiff’s engaging in any protected conduct, Defendants Lawrence and O’Dell already had
determined that the charge of theft warranted immediately suspending Plaintiff. As discussed, their
motive could not have been retaliatory. The fact that Plaintiff was immediately terminated once he
was found guilty of the same charge strongly suggests that Defendants Lawrence and Whitehead
were acting with the same motivation in recommending Plaintiff be terminated as Lawrence and
O’Dell were in recommending he be suspended.
Moreover, while Defendant Lawrence was one of two officials who made the
recommendation that Plaintiff be terminated for having two theft misconducts, he was not the
ultimate decisionmaker in the termination. Instead, Defendant Classification Director Mittlestadt
made the determination that Plaintiff would be terminated and permanently removed from the foodservice-worker pool. A defendant’s statements or conduct are not evidence of retaliation if the
defendant is not the decisionmaker taking the alleged adverse action. Smith v. Campbell, 250 F.3d
1032, 1038 (6th Cir. 2001); Shehee v. Luttrell, 199 F.3d 295, 301 (6th Cir. 1999).
Plaintiff seeks to overcome this problem by making a conclusory allegation that all
Defendants conspired to retaliate. 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, 826 F.2d at 1538; Smith v. Rose, 760 F.2d 102,106 (6th Cir. 1985); Pukyrys v.
Olson, No. 95-1778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996). 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
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, 1996
WL 43541, at *3 (6th Cir. Feb. 1, 1996).
Plaintiff’s allegations of conspiracy are both conclusory and speculative. His
allegations, even viewed in the light most favorable to Plaintiff, involve individual determinations
made by multiple officials. Plaintiff has provided no allegations establishing a link between the
alleged conspirators or any agreement between them to retaliate against Plaintiff. Plaintiff relies
entirely on a highly attenuated inference from the mere fact that he was disciplined by more than one
prison official. As the Supreme Court has held, such allegations, while hinting at a “possibility” of
conspiracy, do not contain “enough factual matter (taken as true) to suggest that an agreement was
made.” Twombly, 550 U.S. at 556. Instead, the Court has recognized that although parallel conduct
may be consistent with an unlawful agreement, it is insufficient to state a claim where that conduct
“was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed ...
behavior.” Iqbal, 129 S. Ct. at 1250. In light of the far more likely possibility that the Defendants’
actions were unrelated to a conspiracy to retaliate, Plaintiff fails to state a plausible claim of
In the face of Plaintiff’s tenuous and conclusory allegations of retaliation, the
remaining facts alleged by Plaintiff strongly support a conclusion that his suspension and eventual
termination from his job were motivated by the undisputed fact that he twice had been convicted of
theft from food services during the course of his employment. While Plaintiff attempts to argue that
he was not informed of such a rule and that the policy could or should have been interpreted
differently, his own recitation of the facts evidences that Defendants acted with an entirely legitimate
motivation. Indeed, the legitimacy of the motivation is further supported by Plaintiff’s allegation
that, only a month after Plaintiff’s termination, Defendant Mittlestadt posted an even stricter policy,
under which any food service worker would be permanently terminated from food service at LCF
if found guilty of theft on even one occasion.
For all these reasons, Plaintiff fails to state a claim of retaliation against any
Although Plaintiff does not formally allege a violation of due process, most of his
allegations address the notice, procedures and fairness of the decisions to suspend and terminate his
employment, which arguably implicate the Due Process Clause of the Fourteenth Amendment.
Specifically, Plaintiff argues that Defendants’ actions did not comply with MDOC policy because,
although the policy allowed a prisoner to be temporarily suspended from his employment for any
misconduct, in the case of a Class II misconduct, the action could only be taken “[w]ith prior
approval of the Warden or designee . . . .” MICH . DEP ’T OF CORR., Policy Directive 05.01.100, ¶ AA.
Plaintiff also argues that his permanent termination from food service is only authorized under
MDOC policy when the classification director determines that reassignment would be a threat to the
safety or security of the institution, a finding he suggests is unreasonable. Id., ¶ BB. In addition, he
complains that he never received written notice that he was being suspended during the pendency
of the misconduct proceedings. He also alleges that he received no notice that a second theft
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conviction would result in his termination from food service. Finally, he asserts that Defendants
were motivated by a desire to eliminate a highly compensated employee from their payroll.
Plaintiff fails to state a due process claim for several reasons. First, a 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);
McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to
follow policy directive does not rise to the level of a constitutional violation because policy directive
does not create a protectable liberty interest). 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
Moreover, Plaintiff had no interest in his prison employment that was protected by
the Due Process Clause. “Without a protected liberty or property interest, there can be no federal
procedural due process claim.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir.
2007) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)). The Sixth Circuit
consistently has 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”); Carter v. Tucker, No. 03-5021,
2003 WL 21518730, at *2 (6th Cir. July 1, 2003) (same). Further, “as the Constitution and federal
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law do not create a property right for inmates in a job, they likewise do not create a property right
to wages for work performed by inmates.” Carter, 2003 WL 21518730, at *2 (citing Williams v.
Meese, 926 F.2d 994, 997 (10th Cir. 1991) and James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir.
1989)). Under these authorities, Plaintiff fails to state a due process claim arising from the
suspension or termination of his prison employment.
To the extent that Plaintiff seeks to invoke this Court’s supplemental jurisdiction over
his claims under the Michigan constitution or state tort law, the Court declines to exercise
jurisdiction. The Sixth Circuit routinely has held that, where a district court has exercised
jurisdiction over a state-law claim solely by virtue of supplemental jurisdiction and the federal claims
are dismissed prior to trial, the state-law claims should be dismissed without reaching their merits.
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993); Faughender v. City of
N. Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991). Plaintiff’s state-law claims therefore will be
dismissed without prejudice.
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
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$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: October 27, 2011
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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