Thompson #726007 v. Zwikler 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. 1:13-cv-167
Honorable Robert Holmes Bell
UNKNOWN ZWIKLER 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 will pay the initial
partial filing fee when funds are available. 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.
§§ 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, the Court will dismiss Plaintiff’s complaint for failure to state a
claim against Defendant Breedlove. The Court will serve the complaint against Defendants Zwikler
Plaintiff presently is incarcerated at the Ionia Maximum Correctional Facility. In his
pro se complaint, he sues Sergeant Unknown Zwikler, Prison Official Robert Ault and Grievance
Coordinator M. Breedlove.
On January 14, 2013, Plaintiff claims that Sergeant Zwikler was supposed to deliver
two letters of legal mail to Plaintiff but Zwikler left one letter in another prison unit. Zwikler
indicated that he would look for the misplaced letter. On January 16, Plaintiff received an opened
letter from the United States Department of Justice (DOJ). Plaintiff states that the DOJ letter was
the misplaced piece of legal mail. Because Plaintiff had filed a written request to have his legal mail
opened in his presence in accordance with Michigan Department of Corrections (MDOC) Policy
Directive 05.03.118 (effective Sept. 14, 2009), Plaintiff asserts that Zwikler should not have opened
the DOJ letter.
After the Zwikler incident, Plaintiff wrote to Defendant Breedlove requesting to file
a grievance. Because Plaintiff was on modified access to the grievance process, he could not file a
grievance without Breedlove’s approval. Plaintiff does not allege whether Breedlove ever provided
him with a grievance form.
Plaintiff finally complains that he gave an oversized envelope to Defendant Ault for
mailing but Ault did not mail the envelope. Instead, Ault allegedly signed the disbursement
authorization for postage, read the letter and disposed of it.1
In summary, Plaintiff states that “these prison officials are ta[m]pering [with] all my
mail trying to block my legal access and litigation . . . ” in violation of his First Amendment rights.
The Court notes that it is not clear from Plaintiff’s complaint whether the outgoing letter was legal mail.
(Compl., docket #1, Page ID#5.) Plaintiff also claims that Defendants Ault and Zwikler violated his
First Amendment rights by interfering with his legal mail and privacy rights.
For relief, Plaintiff requests injunctive relief and monetary damages.
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, 556 U.S. 662, 678
(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, 556 U.S. at 679.
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, 556 U.S. at 678 (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, 556 U.S. at 679 (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)
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).
Plaintiff fails to make specific factual allegations against Defendant Breedlove, other
than his claim that Breedlove was complicit in the actions taken by other Defendants because she
failed to provide a grievance form upon Plaintiff’s request. Government officials may not be held
liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior
or vicarious liability. Iqbal, 556 U.S. at 676; 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 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, 556 U.S. at 676. Plaintiff
has failed to allege that Defendant Breedlove engaged in any active unconstitutional behavior.
Moreover, 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, at *1 (6th Cir. Mar. 28, 1994). Because
Plaintiff has no liberty interest in the grievance process, Defendant’s conduct did not deprive him
of due process.
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, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The
exhaustion requirement only mandates exhaustion of available administrative remedies.
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
For all these reasons, Plaintiff fails to state a claim against Defendant Breedlove.
Defendants Zwikler and Ault
At this stage of the case, the Court concludes that Plaintiff’s allegations against
Defendants Zwikler and Ault are sufficient to warrant service of the complaint against them.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendant Breedlove 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 will serve the complaint
against Defendants Zwikler and Ault.
An Order consistent with this Opinion will be entered.
Dated: March 14, 2013
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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