Kaser #192109 v. King et al

Filing 4

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

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

CHRISTOPHER J. KASER,
Plaintiff,

Case No. 1:13-cv-574

v.

Honorable Janet T. Neff

ANTHONY KING et al.,
Defendants.
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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, 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 and/or because Defendants
are immune from Plaintiff’s damages claim.

Factual Allegations
Plaintiff Christopher J. Kaser is a state prisoner incarcerated by the Michigan
Department of Corrections (MDOC) at the Carson City Correctional Facility (DRF). The events
giving rise to the complaint occurred while he was housed at DRF and at the Earnest C. Brooks
Correctional Facility (LRF). He sues the following employees of the MDOC: Parole Board
Members Anthony King and Amy M. Bonito; DRF Warden Willie Smith and three unknown staff
members at DRF (“Unknown Parties”); Assistant Resident Unit Supervisor (ARUS) (unknown)
Irby; and Program Coordinator D. Johnson.1
According to the complaint, in May 2012, while Plaintiff was incarcerated at the
Muskegon Temporary Facility, he learned that he was scheduled to receive a parole hearing on July
26, 2012. On June 6, 2012, for reasons unknown to Plaintiff, he was transferred to LRF, to a higher
level of security. He contacted ARUS Irby to find out the reason for his placement in a higher
security level. Irby was unable to respond.
On the morning of June 25, 2012, Plaintiff was placed on a callout for a violence
prevention program (VPP) run by Defendant Johnson. Plaintiff went to the program and informed
Johnson that he had not received a recommendation from the MDOC’s Reception Guidance Center
(RGC) to attend a program for violent offenders. Johnson informed Plaintiff that the VPP was a new
program, and he was required to participate regardless of his classification or programming
recommendations. Plaintiff asked her for evidence that he was required to take the program, but she
could not provide any.

1

Defendants Irby and Johnson are located at LRF.

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Later that afternoon, Defendant Irby informed Plaintiff that he was scheduled to see
the parole board that afternoon, and that he would have to sign a statement waiving his right to 30day advance notice of the parole hearing. Plaintiff refused to sign the waiver because he was
concerned that his current security classification and the requirement that he participate in the VPP
would reduce his chances of parole. In response, Irby stated, “You want to refuse to see the Parole
Board, that’s on you.” (Compl., docket #1, Page ID#4.) Plaintiff stated that he was not refusing to
see the parole board; he was refusing to waive his right to advance notice. Irby told Plaintiff, “Get
the fuck out, you refused to see ’em.” (Id.)
On June 26, 2012, Plaintiff was called out to attend the VPP, but he refused to attend.
The next day, Plaintiff went to the VPP and showed his RGC and classification papers to Defendant
Johnson. She stated, “It does not matter, you[’re] in my class. Sign.” (Id.) Plaintiff refused to
consent to participation in the program.
Plaintiff alleges that participation in the VPP would have required his attendance for
three hours a day, five days a week, for five months. Also, it would have required him to remain
in a higher level of security, reducing his chances for parole. In addition, it would have caused him
to be considered a violent offender, further reducing his likelihood of release on parole.2 Plaintiff
also contends that it is a “medical program” requiring release of his medical records, and that it
results in the tracking of offenders after completion of the program. (Id.)
On June 28, 2012, Plaintiff again told Johnson that he would not participate in the
VPP. She told him, “I will make sure you’re flopped for refusing my program.” (Id.) According
to Plaintiff, “‘flopped’ is a term used to describe being passed over for parole.” (Id.) Johnson later
2
Plaintiff asserts that he has not been designated as a violent offender, and he is not serving a sentence for a
violent offense. (Compl., docket #1, Page ID#4.)

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completed four prisoner program evaluations regarding Plaintiff,3 one for each of the four days that
he refused to participate in the VPP. Plaintiff implies that it was improper for her to complete the
program evaluations because he never participated in the program.
On June 30, 2012, Plaintiff was transferred to Pugsley Correctional Facility (MPF),
to the lowest level of security. He did not receive the parole hearing that had been scheduled for
July. Instead, in November 2012, he received notice that the parole board had denied him parole.
The parole board’s decision “included” the program evaluations prepared by Defendant Johnson.
(Id. at Page ID#5.)
Sometime later, Plaintiff retained counsel to assist him in filing a state petition for
a writ of habeas corpus concerning the parole board’s decision to deny parole. In December 2012,
Plaintiff was transferred to DRF. Plaintiff informed his attorney of the transfer, because it would
impact the venue for his proposed writ of habeas corpus. On April 12, 2013, Plaintiff received a
letter from his attorney regarding proposed changes to the writ. On April 24, 2013, Plaintiff
received a visit from his attorney. An unknown officer and sergeant refused to let Plaintiff take his
legal documents with him to the meeting. A third staff member told Plaintiff that he needed the
warden’s approval before bringing items to a visit. As a result, Plaintiff was forced to meet with his
attorney without the relevant documents for their meeting.
Based on the foregoing, Plaintiff claims that Defendants King and Bonito denied him
parole without a hearing, in violation of his right to due process. Plaintiff seeks damages against
them in their official capacities.

3

Plaintiff refers to the evaluations as “363’s.” (Compl., docket #1, Page ID#4.) According to MDOC policy,
prisoners assigned to work or school or placed in recommended programs are evaluated using the “Prisoner Program and
Work Assignment Evaluation (CSJ-363).” MDOC Policy Directive 05.01.100 ¶¶ I, EE (effective May 30, 2011).

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Plaintiff seeks damages against Defendant Johnson in her personal capacity because
she required him to attend a “non-recommended program” and she “falsified” documents to
“interfere” with his parole process. (Compl., docket #1, Page ID#6.)
Plaintiff also seeks damages against Defendant Irby in her personal capacity because
she failed to schedule a parole interview in accordance with MDOC policy.
Plaintiff seeks damages against Warden Smith in his official capacity because he
failed to ensure that “his staff follow the policies of the [MDOC].” (Id.)
Finally, Plaintiff seeks damages against the three unknown officers at DRF
(Unknown Parties) in their personal capacities because they did not follow MDOC policies
regarding attorney visits.
Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 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

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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)).
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).

A. Supervisory Liability
Plaintiff fails to make specific factual allegations against Warden Smith, other than

his assertion that Smith failed to properly supervise the conduct of his subordinates. 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).

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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 Smith engaged
in any active unconstitutional behavior. Accordingly, Plaintiff fails to state a claim against him.
B. Due Process
Plaintiff claims that Defendants King and Bonito violated his right to due process by
denying him parole without affording him a hearing. To establish a procedural due process
violation, a plaintiff must prove that (1) he was deprived of a protected liberty or property interest,
and (2) such deprivation occurred without the requisite due process of law. Club Italia Soccer &
Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir. 2006); see also Swihart v.
Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006). Plaintiff fails to raise a claim of constitutional
magnitude because he has no liberty interest in being released on parole. There is no constitutional
or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz
v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish
a parole system, it has no duty to do so; thus, the presence of a parole system by itself does not give
rise to a constitutionally protected liberty interest in parole release. Id. at 7, 11; Bd. of Pardons v.
Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an

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inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d
233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir. 1994) (en banc), the Sixth
Circuit, noting “the broad powers of the Michigan authorities to deny parole,” held that the
Michigan system does not create a liberty interest in parole. The Sixth Circuit reiterated the
continuing validity of Sweeton in Crump v. Lafler, 657 F.3d 393 (6th Cir. 2011), holding that the
adoption of specific parole guidelines since Sweeton does not lead to the conclusion that parole
release is mandated upon reaching a high probability of parole. See id. at 404; see also Carnes v.
Engler, 76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has rejected the argument
that the Due Process Clause is implicated when changes to parole procedures and practices have
resulted in incarcerations that exceed the subjective expectation of the sentencing judge. See Foster
v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the Michigan Supreme Court has recognized
that there exists no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd.,
596 N.W.2d 598, 603-04 (Mich. 1999).
Until Plaintiff has served his maximum sentence, he has no reasonable expectation
of liberty. The discretionary parole system in Michigan holds out “no more than a mere hope that
the benefit will be obtained.” Greenholtz, 442 U.S. at 11. Consequently, Defendants’ failure to
provide a parole hearing implicates no federal right. In the absence of a protected liberty interest,
Plaintiff fails to state a claim for a violation of his procedural due process rights.
Similarly, Plaintiff does not state a constitutional claim against Defendants Irby for
failing to schedule a parole hearing, or against Defendant Johnson for requiring Plaintiff to
participate in a program that could impact his parole eligibility or for making statements to the

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parole board that impacted its decision. Because Plaintiff is not constitutionally entitled to parole
or to a parole hearing, their actions did not violate his constitutional rights.
Finally, to the extent that Plaintiff objects to being placed in a higher level of security
in connection with the VPP, he does not state a claim because 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).
Consequently, for all the foregoing reasons, Plaintiff does not state a due process claim.
C. MDOC Policies
Plaintiff claims that Defendants Irby and Unknown Parties failed to comply with
MDOC policies. An 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 at 580-81. Consequently Plaintiff does not state a cognizable § 1983 claim
against Defendants for their failure to comply with MDOC policies.
D. Access to the Courts
Plaintiff’s contention that the unknown corrections officers prevented him from
sharing documents with his attorney in connection with possible state habeas proceedings arguably

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implicates his right of 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 right 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). In order to state a viable claim for interference with
his access to the courts, however, 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 Defendants 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). He must make a specific claim that
he was adversely affected or that the litigation was prejudiced. Harbin-Bey v. Rutter, 420 F.3d 571,
578 (6th Cir. 2005); Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2,
1994). “Examples of actual prejudice to pending or contemplated litigation include having a case
dismissed, being unable to file a complaint, and missing a court-imposed deadline.” Harbin-Bey,
420 F.3d at 578 (citing Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004)).
Plaintiff does not allege that he suffered any injury as a result of Defendants’ actions.
He does not contend, for instance, that he missed a filing deadline or lost an opportunity to pursue
a claim. Consequently, he does not state an access to the courts claim.
II.

Immunity

Plaintiff seeks damages from Defendants Smith, King, and Bonito and sues them in
their official capacities. A suit against an individual in his or her official capacity is equivalent to
a suit brought against the governmental entity:

in this case, the Michigan Department of

Corrections. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones,

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35 F.3d 1046, 1049 (6th Cir. 1994). An official-capacity defendant is absolutely immune from suit
for monetary damages. Will, 491 U.S. at 71; Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453,
456 (6th Cir. 1998); Wells v. Brown, 891 F.2d 591, 592-93 (6th Cir. 1989). Thus, Defendants Smith,
King, and Bonito are subject to dismissal for the additional reason that, because they are sued in
their official capacities, they are immune from Plaintiff’s damages claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim and/or on grounds of
immunity pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: September 18, 2013

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

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