King #223983 v. Czop et al

Filing 4

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
SOUTHERN DIVISION

LESTER KING,
Plaintiff,

Case No. 1:13-cv-406

v.

Honorable Robert Holmes Bell

UNKNOWN CZOP 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, the Court will dismiss Plaintiff’s due process claims
for failure to state a claim. The Court will serve Plaintiff’s Eighth Amendment claims on Defendants
LeBarrge, Czop and Correctional Medical Services, Inc.

Discussion
I.

Factual allegations

Plaintiff presently is incarcerated at the Gus Harrison Correctional Facility but
complains of events that occurred at the Ionia Maximum Correctional Facility (ICF). In his pro se
complaint, he sues Dr. Unknown Czop, Health Service Manager Jodie LeBarrge and Correctional
Medical Services, Inc.
Plaintiff suffers from sleep apnea.1 He states that he needs a C/Pap machine2 readily
available to help regulate his sleep apnea. On June 24, 2010, Plaintiff was transferred to ICF. He
complains that the transferring officers broke his C/Pap machine. On June 29, 2010, Plaintiff states
that he wrongly received a major misconduct ticket for the destruction of his C/Pap machine. He
was ultimately found guilty of that major misconduct ticket.
On June 28, July 5 and July 12, 2010, Plaintiff submitted medical kites to ICF Health
Service personnel for another C/Pap machine but was denied each time. On July 9, 2010, Plaintiff
was interviewed by ICF Health Service Supervisor Brian Deene3 for his Step I grievance. Deene
noted that Plaintiff had an upcoming appointment with Defendant Czop. During Plaintiff’s
appointment with Defendant Czop, Czop stated “I cannot provide you, nor order you another C/Pap
machine. In my opinion, you do not need one, just sleep a lot when you feel tired. Also, Prison
Medical [S]ervices, my boss, no long honor[s] nor treat[s] [s]leep apnea and has not provided C/Pap

1

Sleep apnea is a sleep disorder in which breathing repeatedly stops and starts. See the Mayo Clinic’s website
at http://www.mayoclinic.com/health/sleep-apnea/DS00148 (visited August 7, 2013).
2

C/Pap is an acronym for “continuous positive airway pressure” used to treat sleep apnea. See the Mayo Clinic’s
website at http://www.mayoclinic.com/health/sleep-apnea/SL00017 (visited August 7, 2013).
3

ICF Health Service Supervisor Brian Deene is not listed as a Defendant in Plaintiff’s action.

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machines to inmates since April of 2009. . . .” (Compl., docket #1, Page ID#4.) Plaintiff has not
received a C/Pap machine since June 24, 2010.
Reading Plaintiff’s complaint liberally, he appears to allege that he was denied his
due process rights when the transferring officers broke his C/Pap machine and when he was issued
a major misconduct ticket for the destruction of state property. See Haines, 404 U.S. at 520. He also
claims that Defendants violated his Eighth Amendment rights by denying him a C/Pap machine.
Plaintiff requests monetary damages and injunctive relief.
II.

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, 47 (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
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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)
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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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).
A.

Parratt Doctrine

Plaintiff complains that the officers transferring him to ICF broke his C/Pap machine.
However, Plaintiff does not list those officers as Defendants in his action. Even if he did, Plaintiff’s
claim regarding the loss of his property would be barred by the doctrine of Parratt v. Taylor, 451
U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a
person deprived of property by a “random and unauthorized act” of a state employee has no federal
due process claim unless the state fails to afford an adequate post-deprivation remedy. If an adequate
post-deprivation remedy exists, the deprivation, although real, is not “without due process of law.”
Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivation of property,
as long as the deprivation was not done pursuant to an established state procedure. See Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff’s claim is premised upon allegedly unauthorized negligent acts of state officials, he must plead and prove the inadequacy of state post-4-

deprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v.
Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure
to sustain this burden requires dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751
F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH . DEP ’T

OF

CORR., Policy Directive

04.07.112, ¶ B (effective July 9, 2012). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH . COMP . LAWS § 600.6419; Policy
Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims
asserting tort or contract 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
specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court action
would not afford him complete relief for the deprivation, either negligent or intentional, of his
personal property. Accordingly, Plaintiff’s due process claim will be dismissed.
B.

Major Misconduct

Plaintiff complains that he was wrongly charged with “destruction of state [p]roperty
(the C/Pap machine) over ten dollars ($10.00).” (Compl., docket #1, Page ID#4.) To the extent that
Plaintiff claims that a false misconduct charge was filed against him, he fails to state a due process
claim. A prisoner’s ability to challenge a prison misconduct conviction depends on whether the
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convictions implicated any liberty interest. In the seminal case in this area, Wolff v. McDonnell, 418
U.S. 539 (1974), the Court prescribed certain minimal procedural safeguards that prison officials
must follow before depriving a prisoner of good-time credits on account of alleged misbehavior. The
Wolff Court did not create a free-floating right to process that attaches to all prison disciplinary
proceedings; rather the right to process arises only when the prisoner faces a loss of liberty, in the
form of a longer prison sentence caused by forfeiture of good-time credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every conceivable
case of government impairment of private interest.” But the State having created the
right to good time and itself recognizing that its deprivation is a sanction authorized
for major misconduct, the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment “liberty” to entitle him to those minimum
procedures appropriate under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct conviction resulted in any loss of
good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it relates
to the creation and forfeiture of disciplinary credits4 for prisoners convicted for crimes occurring
after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined that loss
of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence. Rather, it
merely affects parole eligibility, which remains discretionary with the parole board. 481 F.3d at 440.
Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held that a

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For crimes committed after April 1, 1987, M ichigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. M ICH . C O M P . L AW S § 800.33(5).

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misconduct citation in the Michigan prison system does not affect a prisoner’s constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196, at *4 (E.D. Mich. Nov.
24, 2010) (Report & Recommendation) (holding that “plaintiff’s disciplinary hearing and major
misconduct sanction does not implicate the Fourteenth Amendment Due Process Clause”), adopted
as judgment of court, 2011 WL 5491196 (Jan. 4, 2011). In the absence of a demonstrated liberty
interest, Plaintiff has no due-process claim based on the loss of disciplinary credits. See Bell v.
Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, Plaintiff
may nevertheless be able to raise a due-process challenge to prison misconduct convictions that
result in a significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Unless a
prison misconduct conviction results in an extension of the duration of a prisoner’s sentence or some
other atypical hardship, a due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir.
2004). Plaintiff has not identified any significant deprivation arising from his conviction, and, thus,
his due process claim fails.
Moreover, even if Plaintiff had a due-process interest in not being falsely charged
with a misconduct, the Sixth Circuit recently has held that a prisoner’s claim that he was falsely
accused of a major misconduct is barred where there has been a finding of guilt in a misconduct
hearing. See Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013). Plaintiff acknowledges that
he was convicted of the misconduct ticket. As a consequence, Plaintiff may not bring a claim
challenging the validity of the misconduct charge.

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For all of these reasons, Plaintiff’s due process allegations regarding his misconduct
conviction fail to state a claim.
C.

Service

Plaintiff’s Eighth Amendment allegations are sufficient to warrant service of his
complaint on Defendants LeBarrge, Czop and Correctional Medical Services, Inc.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s due process claims 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 Plaintiff’s
Eighth Amendment claims against Defendants LeBarrge, Czop and Correctional Medical Services,
Inc.
An Order consistent with this Opinion will be entered.

Dated: August 20, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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