Williams #327008 v. Davenport et al

Filing 9

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

KENNETH WILLIAMS,
Plaintiff,

Case No. 1:13-cv-444

v.

Honorable Robert Holmes Bell

RICHARD DAVENPORT 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 complaint for failure
to state a claim against Defendants Corizon, Prison Health Services, American Service Group, Inc.,
Smith, Birkett, Finn, Fighter, Clifford, Humphreys, Buchanan, Dewald, Kipp and Krick. The Court
will serve the complaint against Defendants Davenport and Sivec.

Discussion
I.

Factual allegations

Plaintiff Kenneth Williams (a/k/a Kenneth Terrell Beard Bey©) presently is
incarcerated with the Michigan Department of Corrections (MDOC) at the Carson City Correctional
Facility (DRF). The actions about which Plaintiff complains occurred while he was housed at DRF
and multiple other facilities: (1) the Mid-Michigan Correctional Facility or Pine River Correctional
Facility, now known as the Central Michigan Correctional Facility (STF); the St. Louis Correctional
Facility (SLF); the Woodland Correctional Facility (WCC) (a mental health facility); and the
Bellamy Creek Correctional Facility (IBC).

Plaintiff sues the following DRF officials:

Psychologists Richard Davenport and Betsey Sivec; Warden Willie Smith; Officers (unknown)
Dewald, (unknown) Humphreys, and (unknown) Buchanan; and Assistant Deputy Wardens (ADWs)
(unknown) Kipp and (unknown) Krick. He also sues the following STF employees: Assistant
Resident Unit Supervisor (ARUS) Terri Fighter; Assistant Resident Unit Manager (ARUM) Tina
Finn; Sergeant (unknown) Clifford; and Warden T. Birkett. He also names IBC Corrections Officer
(unknown) Hickok.1 Finally, Plaintiff sues Corizon/Prison Health Services/American Service
Group, Inc.2

1

Two weeks after he filed his complaint, Plaintiff filed a motion to amend, seeking to dismiss Officer Hickok
as a Defendant in the action because Hickok had never received notice of Plaintiff’s intent to file a complaint. Because
plaintiffs are permitted to amend their pleadings once as a matter of course, see F ED . R. C IV . P. 15(a), Plaintiff’s motion
to amend (docket #7) is granted, and Defendant Hickok will be voluntarily dismissed without prejudice.
2
Corizon is a prison health care company formed in 2011 by the merger of Prison Health Services, Inc. and
Correctional Medical Services, Inc. See June 13, 2011 Corizon Press Release, http://www.corizonhealth.com/CorizonNews/Corizon-Launches-From-Correctional-Healthcare-Merger1. American Service Group, Inc., however, is not part
of that merger. The Court therefore has listed each of the companies as separate Defendants.

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Plaintiff alleges that he has received psychiatric care since 2006 for recurring anxiety
and panic attacks. In 2011, while Plaintiff was housed at STF, he was regularly harassed by officers
for his use of the Uniform Commercial Code (UCC) in his legal proceedings. He complains that,
when he tried to send UCC materials to be filed with his federal habeas corpus filing, the UCC
materials were confiscated by Defendants Fighter and Finn, causing Plaintiff to miss an unspecified
filing deadline. After this, Plaintiff allegedly received threats from staff, such as a statement by
Resident Unit Manager (RUM) Scott, who is not named as a Defendant, suggesting that Plaintiff
would be sent home in a body bag. On May 16, 2011, Defendant Clifford confiscated Plaintiff’s
paperwork and wrote a misconduct ticket against Plaintiff for possessing UCC materials and inciting
a riot, ostensibly on the basis of Plaintiff’s written statement that he did not believe prisoners should
work for money, but should work for good time. Plaintiff was transferred to Level IV at SLF, where
RUM Scott, who allegedly threatened Plaintiff, had friends. Plaintiff began to experience severe
panic attacks and ate only bread, milk and juice because officers allegedly were tampering with his
food.
When Plaintiff told the psychologists what was happening, they transferred Plaintiff
to the WCC. Once there, Plaintiff felt safe, but he was told that he could not remain at the facility,
as he was not really mentally ill, only suffering panic attacks. Plaintiff was then transferred to IBC
on June 21, 2011, where he was asked by Officer Martinez, who is not a Defendant in this action,
about his misconduct ticket for inciting to riot. Martinez indicated that he intended to call STF to
determine where they wanted Plaintiff placed. Plaintiff was placed in segregation until June 26,
2011. Thereafter, Plaintiff allegedly was harassed by unknown officers. In September 2011, an
unknown prisoner came into Plaintiff’s cell with a lock attached to a rope. The prisoner swung the
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lock, hitting Plaintiff in the head. Plaintiff then struggled with the prisoner. After Plaintiff broke
free, he ran to the officers’ station and told Defendant Hickok that he had been attacked. Hickok
ordered Plaintiff back to his cell and, when Plaintiff did not comply, wrote a misconduct ticket for
disobeying a direct order. Plaintiff apparently was convicted of the misconduct charge, as he was
placed in segregation and lost ten days of privileges. He then was transferred to DRF.
On November 28, 2012, while Plaintiff was housed at DRF, he experienced a severe
panic attack, took 30 Motrin pills, and blacked out. He was rushed to the Carson City Hospital for
treatment. After he was stabilized, Plaintiff was returned to DRF, where he was placed in the
observation cell for three days, under the treatment of Defendant Davenport. Plaintiff alleges that
his depression worsened while he was in observation. He experienced nausea and headaches and
found it difficult to eat. While he was in the observation cell, ARUS Beecher and Defendant Krick
visited Plaintiff and told him, “I bet you won’t write anything else, will you Mr. Incite to Riot.”
(Compl., docket #1, Page ID#10.) After three days, Plaintiff was returned to the general population.
On January 9, 2013, Plaintiff was in the presence of an acquaintance and fellow
inmate, prisoner “Threat.” (Id., Page ID#6.) Threat told Officer Rosale that he intended to write a
grievance against Rosale for bringing drugs into the facility. Threat was transferred to another
facility. Because Plaintiff was associated with Threat and present during the incident, unnamed
officers and prisoners began spreading the rumor that Plaintiff had snitched on officers and the gang
that was receiving drugs. Plaintiff heard that gang members were going to stab him. On January 12,
2013, Plaintiff had another severe panic attack, took another 15 to 30 pills, and was again rushed to
Carson City Hospital. After being stabilized at the hospital, Plaintiff was brought back to DRF and
placed in an observation cell. Defendants Davenport and Sivec visited Plaintiff while he was in the
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observation cell, and Plaintiff explained what led him to have the attack. Davenport and Sivec left
the room and returned with Sergeant Dunnigan, who is not a Defendant in this action. Dunnigan
allegedly tried to cover-up the allegations, sternly saying to Sivec, “You[’re] in here writing this stuff
down?” (Id., Page ID#7.) Sivec looked timid and denied writing it down. Thereafter, Sivec and
Davenport allegedly acted like the events had never occurred.
Plaintiff alleges that he already had filed a grievance against Davenport because
Davenport had failed to send Plaintiff to a Self-Mutilation Prevention Unit after his first suicide
attempt, as allegedly required by MICH . DEP ’T OF CORR., Policy Directive 04.06.180. Davenport
allegedly came to see Plaintiff in observation, stating, “I can do one of three things. I can send you
back to general population to deal with your situation (threatening), or I can send you to Woodland
Correctional Center (WCC) to get some help, or I can just let you sit here and rot. Yeah, that’s what
I’ll do. Let you sit in here and think about writing another grievance.” (Id., Page ID#7.) Plaintiff
remained in the observation cell for 20 days, during which he was denied soap with which to wash
his hands, was required to eat with his hands, and was not permitted to shower, except on one
occasion. Plaintiff developed itching rashes on his arms and legs. His depression worsened, and he
cut a vein on his left wrist.
Plaintiff complains that, while he was in the observation cell, he was regularly
harassed by Defendant Humphreys and Humphreys’ friend, Officer Rosale, who allegedly was
bringing drugs into the institution.3 Plaintiff claims that his state of panic rose to the point that he

3

Plaintiff has filed a motion to clarify his complaint (docket #8), in which he states that he has not personally
observed either Humphreys or Rosale (spelled “Rossell” in the motion to clarify) selling drugs. Plaintiff states that he
only raised the allegations in order to show the events leading to his mental breakdown. He expressly states that the
truthfulness of the allegations of drug smuggling has no bearing on his complaint. Upon consideration, the Court grants
Plaintiff’s motion to clarify.

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smeared his own feces on the window of his cell. Buchanan told Plaintiff to wipe his feces off the
window or he would not be fed. Plaintiff explained that he did not have anything with which to wipe
the window. Humphreys then left the cell without feeding Plaintiff. Buchanan wrote a misconduct
ticket against Plaintiff for not wiping his feces off the window. The next day, Defendant Dewald
came to hear Plaintiff on the ticket. Dewald gave Plaintiff a rag and told him to wipe his window.
Plaintiff explained that he did not have any gloves, sanitizer or soap. Dewald replied, “So what, it’s
your shit. Now clean it.” Plaintiff states that he “replied4 with the order for threat of tickets and
withheld meals.” (Id., Page ID#8.) Plaintiff subsequently broke out in severely itching rashes on his
arms and legs. On March 1, 2013, Defendant Dewald allegedly told Plaintiff, “You’re gonna get a
chance to see what we do to your kind up North.” (Id.) Plaintiff construed the statement as a threat
of transfer to a northern Michigan prison where he would be treated badly, though, as of this time,
he has not been transferred.
Plaintiff alleges that Defendants Kipp and Krick retaliated against him for filing a
grievance against Officer Nicewander,5 who had purposely slammed Plaintiff’s hand in the cell door
in retaliation for Plaintiff’s use of Uniform Commercial Code materials. Plaintiff claims that Kipp
and Krick held him in a Level IV prison, rather than a Level I prison more appropriate to his limited
misconduct history. He alleges that his improper placement in a Level IV facility increased his
danger and caused more severe anxiety attacks.

4

It appears that Plaintiff intends to allege that he “complied” rather than “replied.”

5

Officer Nicewander is not named as a Defendant in this case, and no further mention of Nicewander or the
incident is contained in the complaint.

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Plaintiff seeks injunctive relief in the form of a transfer to his true security level
(Level I) at a facility at which he would feel safe and an order directing the MDOC to pay for an
outside psychologist. He also seeks compensatory damages in the amount of $10 million.
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
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)).
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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.

Defendants Corizon, Prison Health Services, American Service
Group, Inc., Smith and Birkett

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, 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 Frazier v. Michigan, 41 F. App’x
762, 764 (6th Cir. 2002) (dismissing Plaintiff’s claims where the complaint did not allege with any
degree of specificity which of the named defendants were personally involved in or responsible for
each alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th
Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant));
Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims
against those individuals are without a basis in law as the complaint is totally devoid of allegations
as to them which would suggest their involvement in the events leading to his injuries.”); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir.
2003); Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); Williams v. Hopkins, No. 06-14064,

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2007 WL 2572406, at *4 (E.D. Mich. Sept. 6, 2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996
WL 697937, at *2 (N.D. Ind. Nov. 5, 1996); Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73
(W.D. Mich. 1991). Plaintiff fails to even mention Defendants Corizon, Prison Health Services,
American Service Group, Inc., or Wardens Smith and Birkett in the body of his complaint. His
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”).
Moreover, even assuming that Plaintiff intended to suggest that these Defendants
were responsible for the actions of their subordinates, his allegations would fail. 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); see also
Street v. Corr. Corp. of Am., 102 F.3d 810, 817–818 (6th Cir. 1996) (holding that Monell’s bar to
respondeat superior liability applies to private health corporations providing prisoner medical
services). 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 Defendants Corizon, Prison
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Health Services, American Service Group, Inc., Smith and Birkett engaged in any active
unconstitutional behavior. Accordingly, he fails to state a claim against them.
B.

Defendants Finn & Fighter

Plaintiff alleges that, sometime during the period Plaintiff was housed at STF,
Defendants Fighter and Finn confiscated certain UCC materials that Plaintiff intended to file with
his federal habeas corpus petition. Plaintiff alleges that he missed an unspecified filing deadline as
a result of the interference. Arguably, Plaintiff intends to raise a claim that Finn and Fighter
interfered with his right to access the courts. Alternatively, Plaintiff may intend to argue that he was
deprived of his property without due process. Plaintiff fails to state a claim against Finn and Fighter
under either legal theory.
1.

Access to the Courts

It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states
must protect the right of access to the courts by providing law libraries or alternative sources of legal
information for prisoners. Id. at 817. The Court further noted that in addition to law libraries or
alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen
to draft legal documents, notarial services to authenticate them, and with stamps to mail them.” Id.
at 824-25. The right of access to the courts also prohibits prison officials from erecting barriers that
may impede the inmate’s accessibility to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th
Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
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a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff must
plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal
materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim.
Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The
Supreme Court has strictly limited the types of cases for which there may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim.
Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis changed
actual injury to include requirement that action be non-frivolous).
Further, the Supreme Court squarely has held that “the underlying cause of action . . .
is an element that must be described in the complaint, just as much as allegations must describe the
official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) (citing
Lewis, 518 U.S. at 353 & n.3). Where, as here, “the access claim . . . looks backward,6 the complaint
6

Backward-looking claims “do not look forward to a class of future litigation, but backward to a time when
specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently
unobtainable. The ultimate object of these sorts of access claims . . . is not the judgment in a further lawsuit, but simply
the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.” Christopher, 536
U.S. at 414 (footnotes omitted). In contrast, the “essence”of a forward-looking claim “is that official action is presently
(continued...)

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must identify a remedy that may be awarded as recompense but not otherwise available in some suit
that may yet be brought.” Id. at 415. “Like any other element of an access claim, the underlying
cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to
give fair notice to a defendant.” Id. at 416.
Although Plaintiff broadly alleges that he missed a filing deadline in his habeas case,
he does not allege that he was prevented from filing his habeas action. Instead, he alleges that he
was prevented from submitting UCC materials with his habeas application and that “[h]e has a right
to use any real law that may bring about liberty and justice.” (Compl., Page ID#9.)
Plaintiff fails to allege actual injury to a non-frivolous legal claim. The Uniform
Commercial Code regulates the law of sales and other commercial transactions. It is wholly
irrelevant to a prisoner’s claim of entitlement to release from prison in a habeas corpus proceeding.
To the extent Plaintiff’s habeas petition raised a claim under the UCC, therefore, it was frivolous.
See Carter v. Wands, 431 F. App’x 628, 629 (10th Cir. 2011) (affirming dismissal of petition
claiming that the UCC provided a basis for habeas relief); McNeil-El v. Diguglielmo, 271 F. App’x
283 (3d Cir. 2008) (affirming dismissal of an access-to-the-courts claim based on the confiscation
of UCC materials intended to be filed in a criminal appeal); Brzezinski v. Smith, No. 12-cv-14573,
2013 WL 2397522, at *3 (E.D. Mich. May 31, 2013) (“The UCC speaks only to commercial law and
does not provide a proper basis for appealing a criminal conviction, writing a habeas petition, or
bringing a civil rights action. . . . Any appeal, habeas petition, or civil rights action that relied on the
6

(...continued)
denying an opportunity to litigate for a class of potential plaintiffs. The opportunity has not been lost for all time,
however, but only in the short term; the object of the denial-of-access suit . . . is to place the plaintiff in a position to
pursue a separate claim for relief once the frustrating condition has been removed.” Id. at 413.

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UCC would be frivolous.”). As a consequence, Petitioner has failed to demonstrate that Defendants
Fighter and Finn caused actual injury to a nonfrivolous legal action when they confiscated Plaintiff’s
UCC materials.
2.

Due Process

Plaintiff also arguably complains that Defendants Finn and Fighter deprived him of
his personal property, the UCC materials, without due process of law. Plaintiff’s due process claims
are 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 a state official,
he must plead and prove the inadequacy of state post-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 and cannot sustain his burden in this case. Plaintiff has not alleged
that Michigan 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
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Directive 04.07.112, ¶ B (effective Jul. 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 against Finn and Fighter will be dismissed.
C.

Defendant Clifford

Plaintiff complains that, on May 16, 2011, Defendant Clifford improperly confiscated
a variety of Plaintiff’s paperwork, including UCC materials, social security numbers, family
information and legal contacts. Clifford also confiscated Plaintiff’s journal. Plaintiff appears to
allege that the taking was without due process. He also alleges that Clifford issued a “bogus”
misconduct ticket for incitement to riot based on Plaintiff’s writings. (Compl., Page ID#9.) Plaintiff
acknowledges that the ticket also cited Plaintiff’s improper possession of UCC materials.
For the reasons discussed supra, Plaintiff is barred by the doctrine of Parratt, 451
U.S. at 537, from raising a due process claim about the taking of his property.
To the extent that Plaintiff claims that Clifford filed a false misconduct charge against
him, he also fails to state a due process claim. A prisoner’s ability to challenge a prison misconduct
conviction depends on whether the 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
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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 convictions 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 credits7 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 misconduct citation in the Michigan prison system does not affect a prisoner’s

7

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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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). Plaintiff
has not identified any significant deprivation arising from his convictions. As a consequence of his
misconduct charge, Plaintiff was placed in segregation for a brief period. Generally courts will
consider the nature and duration of a stay in segregation in determining whether it imposes an
“atypical and significant hardship.” Harden-Bey, 524 F.3d at 793. In Sandin, the Supreme Court
concluded that disciplinary segregation for thirty days “did not present the type of atypical,
significant deprivation in which a State might conceivably create a liberty interest.” 515 U.S. at 486.
Likewise, the Sixth Circuit has often held that administrative segregation alone does not involve an
“atypical and significant” hardship implicating a protected liberty interest. See e.g., Jones v. Baker,
155 F.3d 810, 812-13 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995)
(holding a Michigan prisoner’s complaint about his placement in administrative segregation without
a hearing did not rise to the level of an “atypical and significant hardship”). Plaintiff spent only a
few days in segregation as the result of the misconduct conviction. His segregation therefore was
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neither atypical nor significant in relation to the ordinary incidents of incarceration. He therefore
had no protectible interest in his misconduct proceedings.
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.
For all of these reasons, Plaintiff’s allegations against Defendant Clifford fail to state
a claim.
D.

Defendants Humphreys, Buchanan and Dewald

Plaintiff alleges that Humphreys verbally harassed him while he was in the
observation cell. On January 19, 2013, Plaintiff smeared feces on his cell window. When
Humphreys and Buchanan came to Plaintiff’s cell to deliver lunch, Humphreys saw the mess and
told Plaintiff to clean the window or he would not be fed. When Plaintiff did not clean his window,
Humphreys did not give Plaintiff his lunch. In addition, Humphreys issued a misconduct ticket
against Plaintiff for refusing to clean up. Plaintiff complains that Humphreys and Buchanan were
both aware that Plaintiff did not have cleaning materials in the observation cell and was unable to
comply with the order. The following day, Defendant Dewald came to Plaintiff’s cell to review the
ticket. Dewald gave Plaintiff a rag and told him to clean the window or he would continue to get
tickets. Plaintiff apparently cleaned the window. The only other allegation against Defendant

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Dewald is that, on March 1, 2013, Dewald made a remark suggesting that Plaintiff would be moved
up north.
Plaintiff appears to raise an Eighth Amendment claim against Defendants Humphreys,
Buchanan and Dewald. 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). Moreover, “[n]ot 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. In order for a prisoner to
prevail on an Eighth Amendment claim, he must show that he faced a sufficiently serious risk to his
health or safety and that the defendant official acted with “‘deliberate indifference’ to [his] health
or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010) (citing Farmer v. Brennan, 511
U.S. 825, 834 (1994) (applying deliberate indifference standard to medical claims); see also Helling
v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference standard to conditions of
confinement claims)).

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To the extent that Plaintiff complains that he was left in his cell for a day after he had
smeared feces on his window, Plaintiff fails to state a claim. Allegations about temporary
inconveniences, e.g., being deprived of a lower bunk, subjected to a flooded cell, or deprived of a
working toilet, do not demonstrate that the conditions fell beneath the minimal civilized measure of
life’s necessities as measured by a contemporary standard of decency. See Dellis v. Corr. Corp. of
Am., 257 F.3d 508, 511 (6th Cir. 2001); Hartsfield v. Vidor, 199 F.3d 305, 310 (6th Cir. 1999)
(stating that “deprivations of fresh water and access to the toilet for a 20-hour period, while harsh,
were not cruel and unusual punishment”) (citing Stephens v. Carter Cnty. Jail, 816 F.2d 682 (6th
Cir. 1987)). Here, according to Plaintiff’s allegations, he smeared his own cell window with feces
and was left in that cell for one day without the materials to clean it. He then was required to clean
it up with a rag and may not have had all of the cleaning products he would have liked. While
unpleasant, the deprivation was only a temporary inconvenience that did not rise to the level of an
Eighth Amendment violation.
Similarly, Plaintiff’s allegation that Humphreys refused to give Plaintiff his lunch on
one day falls short of stating an Eighth Amendment claim. One instance of missing a food tray does
not violate the Eighth Amendment. See Miller v. Wertanen, 109 F. App’x 64, 65 (6th Cir. 2004)
(single deprivations of books, linens, food trays and mail does not state an Eighth Amendment
claim); Evans v. Capello, No. 2:12-cv-135, 2012 WL 1611227 (W.D. Mich. May 8, 2012) (one
instance of missing a food tray does not rise to an Eighth Amendment claim). Because Plaintiff has
alleged only a temporary inconvenience, his allegation against Humphreys based on the denial of his
lunch meal fails to state a claim. See Dellis, 257 F.3d at 511.

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Finally, Plaintiff complains that Defendant Humphreys verbally harassed him and
Defendant Dewald made comments suggesting that Plaintiff would be transferred to a northern
prison. The use of harassing or degrading language by a prison official, although unprofessional and
deplorable, does not rise to constitutional dimensions. See Ivey, 832 F.2d at 954-55 (pg.18); see
also Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (harassment and verbal abuse do not
constitute the type of infliction of pain that the Eighth Amendment prohibits); Violett v. Reynolds,
No. 02-6366, 2003 WL 22097827, at *3 (6th Cir. Sept. 5, 2003) (verbal abuse and harassment do
not constitute punishment that would support an Eighth Amendment claim); Thaddeus-X v. Langley,
No. 96-1282, 1997 WL 205604, at *1 (6th Cir. Apr. 24, 1997) (verbal harassment is insufficient to
state a claim); Murray v. U.S. Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan.
28, 1997) (“Although we do not condone the alleged statements, the Eighth Amendment does not
afford us the power to correct every action, statement or attitude of a prison official with which we
might disagree.”); Clark v. Turner, No. 96-3265, 1996 WL 721798, at *2 (6th Cir. Dec. 13, 1996)
(“Verbal harassment and idle threats are generally not sufficient to constitute an invasion of an
inmate’s constitutional rights.”); Brown v. Toombs, No. 92-1756, 1993 WL 11882 (6th Cir. Jan. 21,
1993) (“Brown’s allegation that a corrections officer used derogatory language and insulting racial
epithets is insufficient to support his claim under the Eighth Amendment.”). Accordingly, Plaintiff
fails to state an Eighth Amendment claim against Defendants Humphreys and Dewald arising from
their alleged verbal abuse.
E.

Defendants Kipp and Krick

Plaintiff alleges that ADWs Kipp and Krick improperly placed him in Level IV
security, though his disciplinary history warranted placement in Level I housing. He alleges that
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their actions were taken in retaliation for Plaintiff’s filing of a grievance against DRF Corrections
Officer Nicewander, who allegedly slammed Plaintiff’s hand in his cell door to punish Plaintiff’s use
of the UCC.
The Supreme Court repeatedly has held that a prisoner has no constitutional right to
be incarcerated in a particular facility or to be held in a specific security classification. See Olim v.
Wakinekona, 461 U.S. 238, 245 (1983); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum
v. Fano, 427 U.S. 215, 228-29 (1976). The Sixth Circuit has followed the Supreme Court’s rulings
in a variety of security classification challenges. See, e.g., Cash v. Reno, No. 97-5220, 1997 WL
809982, at *1-2 (6th Cir. Dec. 23, 1997) (prisoner’s allegation that he was placed in a security level
higher than warranted based on the information contained in his prison file failed to state a due
process claim because he had no constitutional right to be held in a particular prison or security
classification); O’Quinn v. Brown, No. 92-2183, 1993 WL 80292, at *1 (6th Cir. Mar. 22, 1993)
(prisoner failed to state a due process or equal protection claim regarding his label as a “homosexual
predator” because he did not have a constitutional right to a particular security level or place of
confinement). Because plaintiff does not have a constitutional right to a particular security level or
classification, he fails to state a due-process claim against Defendants Kipp and Krick.
In addition, Plaintiff fails to allege facts supporting his claim that Defendants’
classification decision was retaliatory. 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
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action was motivated, at least in part, by the protected conduct. Id. 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 (1977)).
At this stage of the proceedings, the Court assumes Plaintiff was engaging in
protected conduct when he used UCC materials8 and that his placement in Level IV confinement is
sufficiently adverse to deter a person of ordinary firmness from engaging in protected conduct.9
Plaintiff, however, has wholly failed to allege facts that would support an inference of retaliatory
motive. 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); Birdo v. Lewis, No. 95-5693,
8

As the Sixth Circuit discussed in Jones v. Caruso, 569 F.3d 258, 271-75 (6th Cir. 2009), while some uses of
UCC materials are protected by the First Amendment, UCC materials also can be used to for unprotected purposes, such
as filing fraudulent liens against prison officials.
9

Not all classifications and transfers constitute adverse action. “Since prisoners are expected to endure more
than the average citizen, and since transfers are common among prisons, ordinarily a transfer would not deter a prisoner
of ordinary firmness from continuing to engage in protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir.
2005). Nevertheless, some transfers, including transfers to severely restricted settings, may be sufficiently deleterious
to constitute adverse action. Hill v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010) (holding that transfer to administrative
segregation or another prison’s lock-down unit or can be sufficient to constitute adverse action) (citing Siggers-El, 412
F.3d at 701-02).

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1996 WL 132148, at *1 (6th Cir. Mar. 21, 1996); Fields v. Powell, No. 94-1674, 1995 WL 35628,
at *2 (6th Cir. Jan. 30, 1995); Williams v. Bates, No. 93-2045, 1994 WL 677670, at *3 (6th Cir. Dec.
2, 1994).
Plaintiff merely alleges the ultimate fact of retaliation in this action. He has not
presented any facts to support his conclusion that Defendants Kipp and Krick retaliated against him
because he filed a grievance against Nicewander, one of DRF’s many corrections officers. He has
not alleged that Kipp and Krick had a particular connection to Nicewander or were even aware of
the grievance. He has not even alleged temporal proximity between the filing of his grievance and
the date of Kipp and Krick’s action. See Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004)
(recognizing that, while simple allegations of temporal proximity are not ordinarily sufficient to
demonstrate retaliatory motive, temporal proximity may sometimes be “‘significant enough to
constitute indirect evidence of a causal connection so as to create an inference of retaliatory
motive’”) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). Accordingly, Plaintiff’s
allegations of retaliation by Defendants Kipp and Krick are insuffient to state a claim.
F.

Remaining Defendants Davenport and Sivec

Upon preliminary review, the Court concludes that Plaintiff’s allegations against
Defendants Davenport and Sivec are sufficient to warrant service of the complaint.
Conclusion
Plaintiff’s motion to amend the complaint (docket #7) is granted, and Defendant
Hickok is voluntarily dismissed from the action. In addition, Plaintiff’s motion to clarify the
complaint (docket #8) is granted, and Plaintiff’s allegations have been construed in light of the
clarification. Further, having conducted the review required by the Prison Litigation Reform Act,
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the Court determines that Defendants Corizon, Prison Health Services, American Service Group,
Inc., Smith, Birkett, Finn, Fighter, Clifford, Humphreys, Buchanan, Dewald, Kipp and Krick 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 Davenport and Sivec.
An Order consistent with this Opinion will be entered.

Dated: June 20, 2013

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

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