Barhite #119839 v. Brown et al

Filing 6

OPINION; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc)

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

MELVIN BARHITE, Jr.,
Plaintiff,

Case No. 1:14-cv-218

v.

Honorable Paul L. Maloney

C.C. BROWN et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983,
Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and the
Rehabilitation Act (RA), 29 U.S.C. § 791 et seq. 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
Brostoski, Mackie, Marran, Horton, Norton, O’Brien, Schram, Smith, Theut, Trierweiler, the

unknown hearing investigator at Chippewa, and the unknown librarian at Chippewa. The Court will
allow service of the complaint, in part, on the remaining Defendants, as set forth herein.
Discussion
I.

Factual allegations

Plaintiff Melvin Barhite, Jr. is a state prisoner incarcerated by the Michigan
Department of Corrections (MDOC). At the time of filing the complaint, he was housed at E.C.
Brooks Correctional Facility (Brooks), though the events at issue in the complaint occurred while
he was housed at Parnall Correctional Facility (Parnall), Carson City Correctional Facility (Carson
City), Chippewa Correctional Facility (Chippewa), and Alger Correctional Facility (Alger). In this
action, Plaintiff sues the following MDOC employees, in their official and individual capacities:
(1) from Parnall, Deputy Warden C.C. Brown, Medical Unit Manager C. Ives, and an unidentified
first shift sergeant on March 29, 2012 (“Unknown Party #1”); (2) from Carson City, Deputy Warden
Laura Krick and Nurse Practitioner Victoria Marran; (3) from Chippewa, Warden J. Woods, Deputy
Wardens (Unknown) Horton and (Unknown) Mackie, Hearing Officers (Unknown) Theut and
(Unknown) O’Brien, Resident Unit Manager (Unknown) Norton, Property Room Officer (Unknown)
Smith, an unidentified hearing investigator (“Unknown Party #2”), and an unidentified librarian
(“Unknown Party #3”); and (4) from Alger, Grievance Coordinator W. Trierweiler and Assistant
Resident Unit Supervisor (Unknown) Schram. Plaintiff also sues the following current/former
employees of Corizon: Nurse Practitioner Lynette O’Connor, who worked at Parnall, and Dr.
(Unknown) Brostoski, who worked at Chippewa.
Plaintiff’s allegations in this action primarily concern two issues: (1) inadequate
prison conditions and accommodations for his physical/medical needs; and (2) the deprivation of his
-2-

personal property. Plaintiff also makes a variety of allegations about other issues, including: the
rejection of prison grievances and outgoing mail, the denial of requests for paper, the deprivation of
supplies/equipment for his leg braces, and inaccuracies in his prison record.
A. Prison Conditions
Plaintiff asserts that he suffers from a number of chronic health conditions, including:
diarrhea, diabetes, abnormal urination, hypertension, and hyperlipidemia. Also, he is impaired in
the use of his hands and legs due to a “late effect” of acute poliomyelitis. (Compl., docket #1-1,
Page ID#11.) Because of his health conditions, Plaintiff uses a wheelchair, walks with leg braces
and forearm canes, wears an undergarment, eats from a special menu, and sometimes needs a
typewriter for written communication. Prior to the events at issue in the complaint, Plaintiff was
evaluated at the MDOC’s healthcare facility (“DWHC”) in Jackson, Michigan, to determine which
special accommodations were necessary for him. (Id.) Plaintiff asserts that he would have been
placed in the “ongoing medical unit” at DWHC, also known as “C-Unit,” but that unit has very few
“barrier free, wheelchair accessible” cells. (Id.) Instead, Plaintiff was placed at Parnall, where he
could be housed in a cell containing both a sink and a toilet, and remain close to the healthcare
facilities in Jackson, Michigan.
In October 2011,1 while he was incarcerated at Parnall, he was sexually assaulted by
a MDOC employee who is not a defendant in this action, Dave Sumner. Plaintiff allegedly filed
grievances about the assault,2 and two months later, MDOC personnel started to “whitewash” his
1

In one part of the complaint, Plaintiff’s asserts that the assault occurred in October 2012, but reading his
complaint as a whole, the assault must have occurred in October 2011. Plaintiff was not incarcerated at Parnall in
October 2012, as he was transferred to another facility seven months earlier. (Compl., Page ID#13.)
2

Plaintiff eventually filed a civil rights lawsuit against Dave Sumner in August 2012, in the Eastern District of
Michigan. See Barhite v. Sumner, No. 4:12-cv-13722 (E.D. Mich.).

-3-

file, which means that they started removing from his prison record some of the special medical
accommodations that had been ordered for him.3 (Id. at Page ID#12.) On February 22, 2012, Nurse
O’Connor allegedly changed his file to remove his accommodations for a special diet, a handicap
table, frequent laundry, forearm canes, “Grabber and Shoe Horn,” catheters, and “Brace Boots.” (Id.
at Page ID#13.)
On March 13, 2012, Plaintiff asked Deputy Warden Brown to “fix the problem with
Dave Sumner or move Plaintiff [from Parnall] to another facility, like C-Unit, w[h]ere Plaintiff could
have Barrier Free Wheelchair Accessible housing” as required by the special accommodations in his
file. (Id.) Within an hour, “barrier free” was removed from his list of special accommodations. (Id.)
Plaintiff claims that Defendant Brown worked with Nurse O’Connor and Medical Unit Manager Ives
to change his medical accommodations. According to Plaintiff, removing special accommodations
from a prisoner’s file makes it possible to transfer the prisoner to a facility that cannot provide those
accommodations. Plaintiff claims that Defendants wanted to move him to another facility in
retaliation for “seeking justice” about the assault by Sumner. (Id. at Page ID#14.)
On March 29, 2012, Plaintiff was sent to the transfer center at Parnall to await transfer
to another facility. Transport staff arrived with a bus and informed officials at Parnall that Plaintiff
could not be transported because the bus did not have a wheelchair lift. The sergeant on duty,
3

Per MDOC Policy Directive 04.06.160 ¶ E (effective June 30, 2008):

Whenever a prisoner is identified as having a medical condition which restricts his/her ability to
function adequately in the institutional environment, a qualified health professional shall identify
reasonable options available in a corrections setting which will meet the prisoner’s special medical
need. Options may include prosthetics, medical supplies, assistive devices (e.g., wheelchairs, canes),
medical treatment, or restrictions on activities, placement, or housing. Options also may include the
issuance of non-wool blankets, extra blankets or sheets, special mattresses, or special shoes. The
recommended option(s) shall be set forth on a Medical Detail if expected to be temporary (i.e., six
months or less) or on a Special Accommodation Notice if expected to be long-term (i.e., more than
six months) or permanent.

-4-

Unknown Party#1, disagreed. He wheeled Plaintiff to the door of the bus and ordered Plaintiff to
climb aboard. To comply, Plaintiff had to pull himself backwards up the bus stairs, one step at a
time. He then pulled himself across the floor and up into a seat. Plaintiff was then taken to St. Louis
Correctional Facility, where he was helped out of the bus and into his wheelchair, and then forced
to pull himself up into the seat of a mini-van. MDOC officers then took him to the medical center
at Carson City.
After he arrived at Carson City, medical staff informed Plaintiff that they could not
provide him a special diet because Carson City did not have a diet line. In addition, Plaintiff learned
that he would be housed in an 8-man cell that is not barrier-free or wheelchair accessible, and that
lacks a “wheelchair shower” and “wheelchair toilet.” (Id. at Page ID#16.) After learning this
information, Plaintiff refused to go to his cell. Plaintiff received a misconduct ticket for his refusal
and he was placed in segregation.
On April 3, 2012, Plaintiff received a hearing on the misconduct charge. By this time,
he had been deprived of a “medical menu” for four days and he had “run out” of pills for his
diarrhea. (Id. at Page ID#17.) Plaintiff explained to the hearing officer that Carson City could not
house him because the special accommodations that he needed were not available at that facility.
The hearing was adjourned to investigate that issue. On April 10, 2012, the hearing officer
determined that housing Plaintiff at Carson City “would cause Plaintiff harm and . . . would endanger
his physical condition.” (Id.) Plaintiff was found not guilty of the misconduct.
A deputy warden at Carson City told Plaintiff that staff would try to move him to
another facility. A nurse practitioner at Carson City, Defendant Marran, revised Plaintiff’s list of
special accommodations, ostensibly in order to make the move possible. Specifically, she noted that
-5-

he is wheelchair “permanent” instead of wheelchair “distance only.” (Id. at Page ID#18.) Also,
Deputy Warden Krick increased Plaintiff’s security level from Level I to Level II,4 because the
MDOC did not have barrier-free, wheelchair-accessible housing with an in-cell sink and toilet at
Level I. The Assistant Resident Unit Supervisor (ARUS) at Carson City reviewed Plaintiff’s security
classification and determined that Level I was appropriate, but Krick increased it to Level II, stating
that he needed access to “medical/mental health treatment.” (Id. at Page ID#19.)
On April 17, 2012, Plaintiff was transferred from Carson City to Chippewa.5 By that
time, Plaintiff had been in segregation at Carson City for 17 days without “needed medical care and
equipment,” and he had lost control of his bowels, soiling his undergarments. (Id. at Page ID#20.)
Upon arrival at Chippewa, he was searched and then taken to the medical center. He asked for a
clean undergarment, but his request was refused. He was told that he would see a doctor the next
day. An inmate took Plaintiff to the Level II housing unit (called “Marquette Unit”), and Plaintiff
went to his cell and then to the showers. Along the way, Plaintiff noted a number of aspects about
the facility that did not comply with the ADA 2010 Standards for accessible facilities, including:
raised walking surfaces, improper distances between doors, improper door hardware, a single
elevator for a unit containing eighteen wheelchair cells, an overly-steep wheelchair ramp, insufficient
maneuvering clearance at the entrance of his cell (he had to remove his footrest to enter), no turnaround space inside his cell, no knee or toe space under his desk, an upright footlocker that is not
accessible, inadequate space for transferring to and from his bed, no wheelchair-accessible toilets

4
In the MDOC, security classifications, from least to most secure, are as follows: Levels I, II, IV, V, and
administrative segregation. MDOC Policy Directive 05.01.130 ¶ B (Nov. 10, 2011).
5

Chippewa is located in the “Upper Peninsula” of Michigan, and is far from Plaintiff’s family. (Compl., Page

ID#21.)

-6-

in the unit bathroom, insufficient floor space for approach to the urinals and sinks in the bathroom,
insufficient floor space to enter the “transfer type” showers that have a seat inside the shower, and
no “roll-in” shower. (Id. at Page ID##23-24.)
Apparently, Plaintiff was able to take a shower, and after he finished, he was taken
to the dining hall, where he discovered that there were no “wheelchair tables” at which he could eat.
(Id. at Page ID#25.) His only options were to sit between two seats at a square table, with the corner
of the table “pushed between his gut,” or to sit at a round table with his wheelchair blocking the
walkway. (Id.) Plaintiff later learned that there is one wheelchair table in the corner of the room,
but officers often use it to hold their cups of coffee, which means that an inmate wishing to use the
table must first request permission from the officers. Also, sitting at that table results in the
wheelchair blocking the walkway.
That evening, Plaintiff returned to his cell. He had not yet received any of his
personal or medical property, so he was forced to “reuse” a full undergarment during the night. (Id.
at Page ID#26.) At “count time” the next morning, Plaintiff asked to go to the bathroom, but an
officer told him to stay in his cell. (Id.) After the count finished, Plaintiff was allowed to go to the
bathroom to wash himself and his underwear. Plaintiff later went to the unit officer’s desk to ask
permission to go to the medical unit and get a new undergarment, but his request was denied.
Plaintiff refused to return to his cell, so he was issued a Class I misconduct for disobeying an order.6
He was taken to the medical unit and given medical supplies and new undergarments, and then

6
Under MDOC Policy Directive 03.03.105 (Apr. 9, 2012), a Class I misconduct is a “major” misconduct and
Class II and III misconducts are “minor” misconducts. Id. ¶ B. Plaintiff asserts that the misconduct in his case would
have been a Class II misconduct, but an officer charged him with a Class I misconduct on the basis that “TO MOVE
INMATE WILL CAUSE HARM TO INMATE OR STAFF.” (Compl., docket #1-1, Page ID#28.)

-7-

placed in a segregation cell containing both a sink and a toilet. Also, he started receiving his medical
diet.
On April 25, 2012, Hearing Officer Theut held a hearing regarding the misconduct
charge against Plaintiff. Plaintiff explained his medical needs and concerns about the facility, and
the hearing was adjourned. At another hearing on April 27, 2012, a statement was submitted from
Dr. Brostoski, who asserted that Marquette Unit has wheelchair-accessible cells and that “[Plaintiff]
MAY FIND A SINGLE MAN CELL MORE CONVENIENT BUT THERE IS NO MEDICAL
NEED FOR A SINGLE MAN CELL.” (Id. at Page ID#29.) Based on Dr. Brostoski’s statement,
Officer Theut found Plaintiff guilty of the misconduct and required Plaintiff to serve ten days in
segregation.
On May 10, 2012, Plaintiff was released from segregation and ordered to return to
his unit. Plaintiff agreed to do so because he decided that it would be better to remain in his housing
unit than be sent to segregation. The ARUS told Plaintiff that he reviewed Plaintiff’s security
classification and determined that Plaintiff should be housed at Level I security. Warden Woods
allegedly refused to approve a lower security classification, however, because there were no cells
available in Level I for an inmate in a wheelchair. Over the next several weeks, Plaintiff filed
grievances complaining about “handicap[] violations,” and staff responded by harassing him and
calling him names. (Id. at Page ID#31.) Plaintiff asked for a transfer to another unit/facility, but his
request was denied.
On June 30, 2012, after two months of “trying to make the best of bad housing” and
enduring unidentified harassment from staff, Plaintiff asked for protection from “first shift” staff in
Marquette Unit. (Id.) He was then placed in segregation and issued a Class II misconduct ticket
-8-

because he refused to return to his cell. On July 9, 2012, he was found guilty of the misconduct and
given a 30-day loss-of-privileges sanction. For the next two days, however, Plaintiff was kept in
segregation. At the time, he believed that his continued segregation was for his protection, in
response to his request. At the end of the two days, however, he was ordered to return to his cell.
He refused to do so because he did not want to return to Marquette Unit and because his detention
cell was more appealing than the cell in his housing unit. He received a Class I misconduct ticket
for his refusal.7
On July 17, 2012, Hearing Officer O’Brien held a hearing on the Class I misconduct
charge. Officer O’Brien determined that Plaintiff was not being held in segregation for his
protection, and that Plaintiff had disobeyed an order. He found Plaintiff guilty of the charge and
ordered that Plaintiff serve ten days in segregation. That same day, Plaintiff received a security
classification hearing before Deputy Wardens Mackie and Horton. Defendant Mackie warned
Plaintiff that if he did not return to Marquette Unit after release from segregation, he would be
considered a “management problem” and be re-screened to security Level IV. (Id. at Page ID#34.)
On July 27, 2012, Plaintiff again refused to return to his unit, and he received another
Class I misconduct ticket.8 At the misconduct hearing on August 6, 2012, Officer Theut found that
Plaintiff was not credible regarding his assertion that the housing unit is not wheelchair accessible.
Officer Theut found Plaintiff guilty of the misconduct and required him to serve an additional seven
days in detention. At a security classification hearing on August 13, 2012, Deputy Wardens Mackie

7
Again, the misconduct ticket was for a Class I misconduct because “A FORCED MOVE COULD CAUSE
HARM TO INMATE OR STAFF.” (Compl., Page ID#33.)
8

Again, the misconduct was raised to a Class I misconduct because “A FORCED MOVE COULD CAUSE
HARM TO INMATE OR STAFF.” (Id. at Page ID#35.)

-9-

and Horton again told Plaintiff that if he did not return to Marquette Unit, he would be reclassified
to Level IV security.
On August 15, 2012, Plaintiff refused to return to his unit. Officer O’Brien found
Plaintiff guilty of a Class I misconduct on August 21, and ordered that Plaintiff serve an additional
ten days in detention and lose privileges for 30 days. On August 27, 2012, Defendants Mackie and
Horton held another security classification hearing and Mackie told Plaintiff that he is a security
Level IV inmate. Later that day, an officer told Plaintiff to pack up his belongings for transfer to the
Level IV housing unit (called “Round Unit”). Plaintiff refused to do so, in part, because a
wheelchair-bound inmate in that unit recently had been beaten to death by his cell mate. Also,
Round Unit is not wheelchair accessible.
Plaintiff received another misconduct ticket, and on September 4, 2012, Officer
O’Brien found him guilty of a Class I misconduct and ordered him to serve another ten days in
detention. Three days later, at another security classification hearing, Defendant Mackie “[made]
it very clear [that] Plaintiff will go to Round Unit, or die at Marquette. Plaintiff will never get
moved to another facility. ‘NEVER.’” (Id. at Page ID#37.) Plaintiff claims that other prisoners who
refused to be housed in Marquette Unit or Round Unit during this time, but who were not disabled,
were transferred to other prisons. On September 14, 2012, Plaintiff refused to pack up his
belongings in order to move to the Level IV unit. He was given a misconduct ticket, but the ticket
was dismissed by Hearing Officer Theut on September 26, 2012, because Plaintiff argued that the
misconduct hearing was not timely.

-10-

One hour after dismissal of the charge, Plaintiff was ordered to pack up his
belongings to go to Round Unit, and again he refused. On October 3, 2012, Officer Theut found
Plaintiff guilty of a misconduct, and he ordered Plaintiff to serve an additional 30 days in detention.
On October 5, 2012, Plaintiff returned to his cell and noticed that the complaint he
was preparing to file in the instant action had been moved and some of the pages were mixed up.
Two days later, on October 7, 2012, Resident Unit Manager (RUM) Norton came to Plaintiff’s cell
holding a copy of the complaint. Apparently, prison staff had taken Plaintiff’s legal documents from
his cell and made a copy of them. With the complaint in hand, RUM Norton “explode[d]” and
declared that Plaintiff “would never go home”; he would “die in prison.” (Id. at Page ID#40.) Two
days later, Plaintiff was told to pack up his property, and then the following day, Plaintiff was
transferred to Alger. The staff at Alger placed Plaintiff in Level II, in a single-person cell with a sink
and a toilet; Plaintiff claims that it was a “much less FAKE” wheelchair accessible cell, at a “much
less FAKE wheelchair accessible barrier free facility.” (Id. at Page ID#41.)
B. Property
When Plaintiff was housed at Parnall, he possessed the following property, all of
which, he claims, was allowed by MDOC policy for a Level I inmate: a television, a typewriter, a
duffel bag containing personal property, a footlocker containing personal property, three footlockers
containing legal materials, four boxes that also contained legal materials, and a bag of medical
supplies. When he was transferred to Carson City, his property was placed in that facility’s property
room, and it remained there until Plaintiff was transferred to Chippewa. Plaintiff’s property followed
him to Chippewa, but he was not given access to it because he was placed in segregation the day
after his arrival.
-11-

1. Personal property
On April 18, 2012, Property Room Officer Smith unsealed and inspected Plaintiff’s
personal property. He also unsealed ten of Plaintiff’s typewriter ribbons, which caused them to dry
out and rendered them useless. Officer Smith prepared a notice of contraband removal identifying
Plaintiff’s television, typewriter, duffel bag, and one footlocker as contraband. Smith allegedly told
Plaintiff, “When I’m done you[’re] going to be glad to have a half a duffel bag of property.” (Id. at
Page ID#48.)
On May 10, 2012, RUM Norton held a hearing regarding the contraband personal
property. He did not allow Plaintiff to see his property, nor did he list the items that were
contraband, in violation of prison policy. Instead, Norton simply determined that most of the
property was contraband. Plaintiff asserts that the property should have been held in storage so that
his family could pick it up. By the time that he was transferred to Alger, however, the property had
disappeared.
2. Legal property
Officer Smith also unsealed Plaintiff’s legal property and prepared a notice of
contraband removal for all of that property, claiming that Plaintiff needed a legal hearing to justify
its possession, though Plaintiff asserts that his legal property complied with policy. On May 15,
2012, five days after Plaintiff was released from segregation, a hearing investigator notified him that
there would be a hearing regarding his legal property. The next day, Hearing Officer O’Brien held
a hearing and determined that Plaintiff would have to order four new footlockers because the metal
clasps on his current lockers had been damaged and were coming off. (See Compl., Page ID#50.)

-12-

Plaintiff was told that he would have to wait until his new footlockers arrived before he could access
his legal property.
After the new footlockers arrived, Deputy Warden Mackie told Plaintiff that he would
not be allowed to keep them in his cell. Instead, they would be kept in storage, and Plaintiff would
be allowed to access them one time per month, after submitting a written kite request. When
Plaintiff requested access to his footlockers, however, he was told by “first shift” staff, “I’m not the
property room office, go to your cell,” or “[Y]ou[’re] on LOP [status] go to your cell,” or “Tell me
just what you want, I’ll get it for you, if I can find it.” (Id.) In other words, according to Plaintiff,
he was not given access to his legal property.
After Plaintiff returned to segregation on June 30, 2012, he again requested access
to his legal property. At a security classification hearing, Deputy Warden Mackie told staff to give
Plaintiff access for two hours, two days in a row. Except for that one occasion, Plaintiff was never
given access to his legal property while he was at Chippewa.
3. Medical property
Officer Smith sent Plaintiff’s medical property to the medical unit. Dr. Brostoski
determined that Plaintiff did not need his leg socks or the dressing that he wears under his leg braces.
Also, Dr. Brostoski took Plaintiff’s shoes and wheelchair gloves. At the hearing before RUM
Norton on May 10, 2012, Norton stated that he would put Plaintiff’s personal property, including
his medical property, in the trash.
4. Other personal property
In addition to the personal property identified as contraband or destroyed by
Defendant Smith, Plaintiff contends that other property was lost or destroyed by staff at Chippewa.
-13-

For instance, Plaintiff’s walker was sent from Parnall to Chippewa by Deputy Warden Brown. Later,
when Plaintiff arrived at Alger, he was told that his walker was gone. In addition, an officer at
Chippewa confiscated a tape player from Plaintiff. It should have been held in storage so that
Plaintiff’s family could pick it up, but about a week later Plaintiff received notice that it was to be
destroyed.
Plaintiff further claims that he possessed two book readers at Chippewa, a cassette
player and a digital player. When he was released from segregation, he was given access to his
players, but he was told that he must bring them to the library for inspection once per week and that
he could only keep two books at a time. Plaintiff alleges that non-disabled prisoners are not required
to have their book players inspected. On June 30, 2012, when Plaintiff requested protection from
staff at Chippewa, the players went missing. Someone found them, but then the librarian took them
to the library. When Plaintiff was transferred to Alger, both players were lost.
In addition, while he was at Chippewa, Plaintiff received a package from his family.
When staff packed up his property for transfer to Alger, the package was not listed on his property
form. Plaintiff filed a grievance about the issue, but apparently it was denied. In response to the
grievance at step I of the grievance review process, RUM Norton allegedly “violated policy and
lied.” (Id. at Page ID#53.) At step II of the grievance review process, Warden Woods allegedly
“violated policy and lied.” (Id.)
Finally, when Plaintiff was moved from Level II housing to Level IV housing at
Chippewa, the RUM at Chippewa (presumably, Defendant Norton) confiscated some of his property.
That property never made it to Alger.

-14-

C. Other Issues
1. Prison grievance process
Plaintiff asserts that he attempted to resolve the loss of his property through the prison
grievance process. Grievance Coordinator Trierweiler initially told Plaintiff that he should grieve
all issues regarding the loss of his property in one grievance. After Plaintiff filed his grievance,
however, Trierweiler rejected it because it stated more than one issue. Plaintiff attempted to appeal
this decision to step II of the grievance review process, but Trierweiler rejected it and refused to file
it, telling Plaintiff that he needed to rewrite his grievance. Also, Plaintiff attempted to send a
grievance in the mail to Chippewa regarding an incident occurring at that facility. His mail was
rejected due to insufficient funds, even though MDOC policy provides that inmates are to be loaned
funds for sending mail to another facility.
2. Paper
Plaintiff asserts that he is indigent and can obtain carbon paper from the library by
completing a disbursement form. However, when Plaintiff asked the ARUS for paper, she refused,
stating that he is not indigent.
3. Letter
Plaintiff alleges that he tried to send a letter to the library in Lansing, postage-free,
by marking it “FREE MATTER FOR THE BLIND AND HANDICAPP.” (Id. at Page ID#56.)
Mailroom staff at Alger told him that he could not send it in that fashion.
4. Health / medical supplies
Plaintiff asserts that he could not use his leg braces because the boots given to him
by the medical staff at Alger did not work with his braces. He also contends that the state-issued
-15-

underwear provided for him at Alger was too big to hold his sanitary pad in place, so urine leaked
out of the pad and down his leg. Plaintiff asked for Hanes-brand underwear, the kind he had used
at Chippewa. The quartermaster and the medical unit at Alger did not grant his request. Plaintiff
experienced a similar problem in 2009, while he was incarcerated at G. Robert Cotton Correctional
Facility (Cotton). Defendant Ives, the medical manager at Cotton at the time, would not order
absorbent pads for Plaintiff. Instead, the nurse would cut out a “blue [p]ad,” which “leaked all the
time.” (Id. at Page ID#57.) Plaintiff eventually developed an infectious sore on his leg as a result.
The sore has since been treated, but he now has “MRSA” living in his body. (Id.)
5. Prison record
Plaintiff contends that his prison record, which is reviewed by the Michigan Parole
Board to determine whether to grant parole, is “full of lies,” but Defendant Schram refuses to correct
it. (Id. at Page ID#58.) For instance, the record states that Plaintiff has received thirty-seven
misconducts, but most of them are due to his refusal to be housed in “non[-]handicap[] housing.”
(Id.) Also, the record contains conflicting information about Plaintiff’s juvenile history.
D. Claims / Relief
Based on the foregoing allegations, Plaintiff asserts that Defendants have violated his
rights under the ADA, the RA and the Constitution. Plaintiff also asserts that Defendants’ conduct
(e.g., changing his medical accommodations, forcing him to crawl onto a bus, increasing his security
level, sending him to a facility that is far from his family, and refusing to correct errors in his prison
record) is a form of retaliation for the fact that he complained about being sexually assaulted by a
prison officer. (See id.) As relief, Plaintiff seeks a declaratory judgment, an injunction, and
compensatory and punitive damages from each Defendant. Plaintiff’s request for injunctive relief
-16-

includes the following: (1) transfer to barrier-free, wheelchair-accessible housing that does not
violate state or federal law and that does not “restrict his visitation” in violation of the ADA;
(2) placement at his “true”security level; (3) all misconducts related to “handicap[] or medical”
purged from his file; (4) a new parole hearing based on his corrected record, with notice to the parole
board that his file has been corrected; (5) future security level increases to be accompanied by clearly
stated reasons for the increase; and (6) medical treatment at a level of care comparable to that outside
the prison, with treatment for “Post Polio” by someone who treats that condition. (Id. at Page
ID#59.)
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
-17-

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)).
A. 42 U.S.C. § 1983
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).
Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211,
1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Thus, to the extent that
Plaintiff alleges merely a violation of state law or prison policies, he does not state a § 1983 claim.
B. ADA
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. The term “qualified individual with a disability” includes “an individual with a
disability who, with or without . . . the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or participation in programs or activities provided
-18-

by a public entity.” 42 U.S.C. § 12131(2). To state a claim under Title II of the ADA, Plaintiff must
show that (1) he is disabled under the statute; (2) he is otherwise qualified for the program, services
or activities of the public entity; and (3) he is being excluded from participation in, or denied the
benefits of, the program, services or activities by reason of his disability, or is being subjected to
discrimination by reason of his disability. See S.S. v. E. Ky. Univ., 532 F.3d 445, 453 (6th Cir.
2008). The proper defendant under a Title II claim is the public entity or an official acting in his or
her official capacity. Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir. 2002). Title II does
not allow for damages against a public official acting in his or her individual capacity. Everson v.
Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009).
The ADA “validly abrogates state sovereign immunity” for “conduct that actually
violates the Fourteenth Amendment[.]” United States v. Georgia, 546 U.S. 151, 159 (2006). If
conduct violates the ADA but not the Fourteenth Amendment, then the Court must determine
whether the ADA validly abrogates state sovereign immunity. Id. At this stage of the proceedings,
the Court will assume that the ADA abrogates state sovereign immunity for Plaintiff’s ADA claims.
C. RA
The RA provides, in pertinent part:
No otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . .
29 U.S.C. § 794(a). A “program or activity” includes the operations of “a department, agency, . . .
or other instrumentality of a State . . . .” 29 U.S.C. § 794(b)(1) The requirements for stating a claim
under the RA are substantially similar to those under the ADA, except that the RA specifically

-19-

applies to programs or activities receiving federal financial assistance. By accepting these funds,
states waive sovereign immunity from claims under the RA. Nihiser v. Ohio EPA, 269 F.3d 626,
628 (6th Cir. 2001). For purposes of this Opinion, the Court will assume that the MDOC receives
federal assistance for the prison programs and activities at issue.
In addition, the RA provides that any discrimination be “solely” by reason of the
plaintiff’s disability, which is slightly stricter than the standard in the ADA. See 29 U.S.C. § 794(a).
Also, like the ADA, the RA does not impose liability on individuals. Lee v. Mich. Parole Bd., 104
F. App’x 490, 493 (6th Cir. 2004). Because the statutes are so similar, the Court will assume that
where Plaintiff states an ADA claim, he also states an RA claim. See Thompson v. Williamson Cnty.,
219 F.3d 555, 557 (6th Cir. 2000) (“Because the ADA sets forth the same remedies, procedures, and
rights as the Rehabilitation Act . . . claims brought under both statutes may be analyzed together.”);
Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir. 1997) (“Because the standards under both of the acts
are largely the same, cases construing one statute are instructive in construing the other.”); see also
Owens v. O’Dea, No. 97-5517, 1998 WL 3440, at *2 (6th Cir. May 27, 1998) (“Congress has
dictated that Title II of the ADA be interpreted in a manner consistent with section 504 of the RA.”)
(citing 42 U.S.C. §§ 12134(b), 12201(a)).
III.

Defendants
A. Deputy First Shift Sergeant (“Unknown Party #1”)

A sergeant at Parnall (“Unknown Party #1”) allegedly forced Plaintiff to crawl onto
a bus that did not have a wheelchair lift. 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,
-20-

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). “Not 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)). Plaintiff does not allege that
Defendant subjected him to an objectively serious risk of harm. Thus, he does not state an Eighth
Amendment claim against Defendant.
Plaintiff also contends that Defendant’s actions were a form of retaliation for
Plaintiff’s complaints about Dave Sumner. 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
-21-

that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse
action was motivated, at least in part, by the protected conduct. Id. It is well recognized that
“retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See HarbinBey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987).
“[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 Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th
Cir. 2003) (in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of
retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for
trial”) (internal quotations omitted); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“bare
allegations of malice on the defendants’ parts are not enough to establish retaliation claims” that will
survive § 1915A screening).
Plaintiff’s retaliation claim against Defendant is wholly conclusory. Plaintiff does
not allege any facts to support plausible conclusion that Defendant forced him to crawl onto a bus
because Plaintiff objected to conduct by another officer. Thus, Plaintiff does not state a retaliation
claim, or any other claim under § 1983, against the unidentified first shift sergeant at Parnall. On
the other hand, the Court concludes that Plaintiff’s allegations are adequate to state a discrimination
claim under the ADA/RA.
B. Nurse Marran
Defendant Marran allegedly revised Plaintiff’s list of special accommodations to state
that he is wheelchair “permanent” instead of wheelchair “distance only.” Plaintiff does not indicate
-22-

how this change impacted him, and the import of Marran’s change is unclear. Indeed, Plaintiff
himself professes ignorance as to its meaning. (See Compl., docket #1-1, Page ID#18 (“Plaintiff
don’t understand this one. You use a wheelchair, or you don’t.”).) Plaintiff implies that Marran
changed this accommodation in order to allow him to be moved from Carson City to another facility,
but he provides no allegations to support this conclusion. On its face, “permanent” is a more
expansive requirement than “distance only.” It is difficult to conceive how expanding the
accommodations that Plaintiff requires could have made it easier to transfer him to another facility.
Moreover, Plaintiff’s primary complaint regarding his transfer is that the facility to which he was
sent could not meet his need for barrier-free, wheelchair-accessible accommodations. If anything,
the change made by Defendant Marran underscores that need, and thus, it not apparent how her
conduct could have played a meaningful role in his transfer or otherwise adversely impacted him.
In the absence of allegations from which to infer that Marran’s actions caused Plaintiff any
meaningful harm, let alone violated his constitutional rights or subjected him to discriminatory
treatment because of his disability, Plaintiff does not state a claim against her.
C. Deputy Warden Krick
Plaintiff states that Defendant Krick increased his security level in order to transfer
him to a facility with a wheelchair-accessible cell, because the MDOC does not have barrier-free,
wheelchair-accessible cells in Level I. As to Plaintiff’s claim under § 1983, Plaintiff does not have
a 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., Harris v.
-23-

Truesdell, 79 F. App’x 756, 759 (6th Cir. 2003) (holding that prisoner had no constitutional right
to be held in a particular prison or security classification); Carter v. Tucker, 69 F. App’x 678, 680
(6th Cir. 2003) (same).
Plaintiff asserts that Krick’s conduct was a form of retaliation for complaining about
the sexual assault by Dave Sumner. (See Compl. ¶ 64, docket #1-1, Page ID#19.) Plaintiff merely
alleges the ultimate fact of retaliation by Defendant Krick, however. He has not presented any facts
to support his conclusion that she retaliated against him for any protected conduct. Indeed, according
to Plaintiff, she increased his security level to accommodate his need for a wheelchair-accessible cell
(because the MDOC did not have wheelchair-accessible cells available at Level I), not because of
any protected conduct. Thus, he fails to state a retaliation claim against her.
On the other hand, the Court concludes at this stage of the proceedings that the
allegations suffice to state a claim against Defendant Krick under the ADA/RA. See 28 C.F.R.
§ 35.152(b)(2) (prohibiting public entities from “plac[ing] inmates or detainees with disabilities in
inappropriate security classifications because no accessible cells or beds are available,” “[u]nless it
is appropriate to make an exception”).
D. Hearing Officer Theut
Defendant Theut allegedly found Plaintiff guilty of Class I misconducts on April 27,
2012, August 6, 2012, and October 3, 2012, in each case, because Plaintiff did not comply with
orders to return to his cell. In addition, on September 26, 2012, Theut dismissed a similar
misconduct charge against Plaintiff after Plaintiff notified him that the misconduct hearing was not
timely. For the first misconduct conviction before Defendant Theut, he ordered that Plaintiff be
confined in segregation for ten days. For the second, he ordered confinement for seven days. For
-24-

the third, he ordered confinement for 30 days. Plaintiff acknowledges the conduct on which his
convictions were based, but he apparently contends that Theut should have found him innocent
because he had good reasons for not returning to his assigned cell (i.e., his cell allegedly violated
ADA requirements). In addition, he contends that Theut’s 30-day sanction in October 2012 was
issued in retaliation for Plaintiff’s complaint about the timeliness of the September 2012 hearing.
The Court notes that Plaintiff does not have a constitutional right to avoid
confinement in segregation. See Harden-Bey v. Rutter, 524 F.3d 785, 795 (6th Cir. 2008) (“‘Because
placement in segregation is a routine discomfort that is a part of the penalty that criminal offenders
pay for their offenses against society, it is insufficient to support an Eighth Amendment Claim.’”)
(quoting Murray v. Evert, 84 F. App’x 553, 556 (6th Cir. 2003)); see also Hewitt v. Helms, 459 U.S.
460, 468 (1983) (“[A]dministrative segregation is the sort of confinement that inmates should
reasonably anticipate receiving at some point in their incarceration.”).
In some circumstances, a prisoner’s confinement in segregation triggers the
protections of due process. In Sandin v. Conner, 515 U.S. 472 (1995), the Court held that a
prisoner’s loss of liberty implicates a federally cognizable liberty interest protected by the Due
Process Clause only when it “will inevitably affect the duration of his sentence” or imposes an
“atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Id. at 486-87. Plaintiff does not allege that his misconduct convictions will inevitably affect the
duration of his sentence, nor could he. The Sixth Circuit has examined Michigan statutory law, as
it relates to the creation and forfeiture of disciplinary credits9 for prisoners convicted of crimes

9

For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. MICH. COMP. LAWS § 800.33(5).

-25-

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.
Instead, it merely affects parole eligibility, which remains discretionary with the parole board. Id.
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 constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912. Thus, Plaintiff’s misconduct convictions might have caused the forfeiture of
disciplinary credits, but they do not necessarily affect the length of his sentence.
In addition, Plaintiff does not allege an atypical and significant deprivation as a result
of his confinement in segregation. In Sandin, the Court concluded that 30 days of disciplinary
segregation does not implicate a liberty interest. Id. at 484. Similarly, the Sixth Circuit has held that
placement in administrative segregation, or confinement in segregation for a relatively short period
of time, are not atypical and significant deprivations. Rimmer-Bey v. Brown, 62 F.3d 789, 790-91
(6th Cir. 1995) (placement in segregation); Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010)
(61 days in segregation). Here, Plaintiff alleges that Defendant Theut sanctioned him with seven,
ten, and thirty days in segregation for his respective misconducts. Like the segregation at issue in
Sandin, Rimmer-Bey, and Joseph, the sanctions issued by Theut were not atypical and significant.
Consequently, in the absence of a protected liberty interest, Plaintiff cannot state a due-process
claim.
Plaintiff apparently challenges the evidence relied upon by Theut in one of the
misconduct hearings, particularly Dr. Brostoski’s statement that the facility has wheelchairaccessible cells. To the extent that Theut found Plaintiff guilty based on a finding that the cells are
-26-

wheelchair-accessible, however, Theut’s findings have preclusive effect in this action. See Peterson
v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013) (holding that factual findings in a Class I misconduct
proceeding are entitled to preclusive effect in a subsequent federal action). Plaintiff could have
challenged the validity of Theut’s findings in a state court action, see Mich. Comp. Laws § 791.255;
he is precluded from doing so here. Peterson, 714 F.3d at 914, 917.
Plaintiff’s retaliation claim is not supported by any facts other than the timing of his
objection to the hearing and a discrepancy between two sanctions. Plaintiff apparently assumes that
the October 2012 sanction should have been the same as his previous sanctions, but it is not
surprising that Plaintiff received the longest sanction after his third misconduct conviction, when it
was clear that the previous sanctions were not enough to deter him from engaging in misconduct.
Thus, Plaintiff does not state a plausible § 1983 claim against Defendant Theut.
Moreover, even if Plaintiff did state a claim under § 1983, Defendant Theut would
be entitled to immunity. In Shelly v. Johnson, 849 F.2d 228 (6th Cir. 1988) (per curiam), the Sixth
Circuit held that Michigan prison hearing officers like Defendant Theut are entitled to “absolute
immunity from liability with respect to their judicial acts.” Id. at 229-30. The doctrine of judicial
immunity protects judicial officers from suits seeking money damages and applies even in the face
of “allegations of bad faith or malice.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam).
Judicial immunity is overcome in only two circumstances: “First, a judge is not immune from
liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a
judge is not immune for actions, though judicial in nature, taken in the complete absence of all
jurisdiction.” Id. at 11-12 (citations omitted). The Supreme Court has held that “whether an act by
a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a function normally
-27-

performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge
in his judicial capacity.” Id. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978) (alteration
in original)). Here, Defendant Theut was clearly acting in his “judicial” capacity when presiding
over misconduct hearings and determining Plaintiff’s sanctions.
Furthermore, as far as the ADA and RA are concerned, Plaintiff does not contend that
Defendant Theut treated him any differently from other prisoners because he is disabled. Those
statutes do not give disabled prisoners license to disobey orders from prison officials. Consequently,
Plaintiff does not state a claim against Defendant Theut.
E. Hearing Officer O’Brien
Like Hearing Officer Theut, Defendant O’Brien allegedly found Plaintiff guilty of
three Class I misconducts for disobeying orders to return to his cell. On all three occasions,
Defendant O’Brien ordered that Plaintiff be detained in segregation for ten days, and on at least on
occasion, the sanction included loss of privileges for 30 days. In addition, at one of the misconduct
hearings, O’Brien allegedly determined that, contrary to Plaintiff’s assertions, the cells in Round
Unit are handicap and wheelchair accessible. Also, at a contraband hearing regarding Plaintiff’s
legal property, O’Brien determined that Plaintiff needed new footlockers to hold his legal property.
1. Misconduct proceedings
Just as Plaintiff does not state a claim against Defendant Theut, Plaintiff does not
state a claim against Defendant O’Brien regarding the proceedings conducted by O’Brien. O’Brien
imposed slightly different sanctions, but ten days in segregation and thirty days’ loss of privileges
is not an atypical and significant deprivation of liberty. See, e.g., Ingram v. Jewel, 94 F. App’x 271,
273 (6th Cir. 2004) (fourteen-day loss-of-privileges sanction did not impose an atypical, significant
-28-

deprivation); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (loss of privileges and
placement in segregation does not implicate a liberty interest protected by the Due Process Clause);
see also Wolff v. McDonnell, 418 U.S. 539, 571 n.19 (1974) (“We do not suggest . . . that the
procedures required . . . for the deprivation of good time would also be required for the imposition
of lesser penalties such as the loss of privileges.”). Plaintiff does not alleged that he was treated
differently on account of his disability, for purposes of stating an ADA/RA claim.
In addition, to the extent that any of Plaintiff’s misconduct convictions were
dependent upon a finding that Round Unit is handicap and wheelchair accessible, Plaintiff cannot
challenge that finding as a basis for bringing a claim against O’Brien in these proceedings. See
Peterson, 714 F.3d at 917.
2. Contraband hearing (legal property)
Defendant O’Brien’s decision to require Plaintiff to obtain new footlockers for his
legal property had the effect of depriving Plaintiff of access to his legal property until new
footlockers arrived. Plaintiff does not state a claim with regard to this deprivation because he
acknowledges that he received notice and a hearing prior to O’Brien’s decision; that is all the
Constitutional requires. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Plaintiff implies that
O’Brien’s decision was incorrect as a matter of prison policy, but a violation of prison policy does
not give rise to a claim in itself, and “even if a state decision . . . is erroneous, it does not necessarily
follow that the decision violated the individual’s right to due process.” Martinez v. California, 444
U.S. 277, 284 n.9 (1980).
In some circumstances, a prisoner’s right of access to the courts might be implicated
by a lack of access to legal property, but Plaintiff does not claim that he was deprived of such access.
-29-

Indeed, he does not allege any adverse consequences as a result of the lack of access to his legal
materials. In order to state a viable access-to-courts claim, Plaintiff must allege “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). In other words, he must plead facts demonstrating that the lack of access to his materials
prejudiced him in 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). “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)). In addition, 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). “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.
Plaintiff does not allege that the lack of access to his legal materials caused him actual
injury to pending or contemplated litigation. Nor does he identify an underlying cause of action as
required by Christopher. Thus, Plaintiff fails to state a claim against Defendant O’Brien.10
F. Dr. Brostoski
Dr. Brostoski allegedly told Defendant Theut that Plaintiff did not need to be housed
in a single-person cell. Also, Dr. Brostoski took Plaintiff’s wheelchair gloves and the clothing that

10

In addition, as a hearing officer acting in his judicial capacity, Defendant O’Brien is immune from a claim for
damages under § 1983.

-30-

he uses (i.e., shoes, leg socks, dressing) to wear his leg braces, ostensibly because he determined that
Plaintiff did not need them.
Dr. Brostoski’s statement at Plaintiff’s misconduct proceedings does not give rise to
a claim, nor does Dr. Brostoski’s decision to deprive Plaintiff of wheelchair gloves and the dressing
used for his leg braces. The Eighth Amendment obligates prison authorities to attend to the medical
needs of incarcerated individuals, as a failure to provide such care would be inconsistent with
contemporary standards of decency. Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). The Eighth
Amendment is violated when a prison official is deliberately indifferent to the serious medical needs
of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). A claim for
the deprivation of adequate medical care has an objective and a subjective component. Farmer, 511
U.S. at 834. To satisfy the objective component, the plaintiff must allege that the medical need at
issue is sufficiently serious. Id. In other words, the inmate must show that he is incarcerated under
conditions posing a “substantial risk of serious harm.” Id.
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
Plaintiff does not allege that his leg braces were medically necessary or that Dr. Brostoski’s actions
subjected him to an objectively serious risk of harm.
-31-

To the extent that Dr. Brostoski deprived Plaintiff of his personal property, Plaintiff
does not state a due process claim. Under Parratt v. Taylor, 451 U.S. 527 (1981), 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.” Id. 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 a random act 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 dueprocess action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985). Plaintiff does not allege that
post-deprivation remedies are inadequate; thus, he has not sustained his burden.
Moreover, Plaintiff does not state an ADA/RA claim against Brostoski because he
does not allege that Brostoski discriminated against him on account of his disability. While it
appears that Dr. Brostoski may have deprived Plaintiff of wheelchair gloves and the clothing Plaintiff
needed to use his leg braces, Plaintiff does not allege that the loss of this property denied him access
to, or prevented him from participating in or receiving the benefit of, a program, service or activity
otherwise available to him. Indeed, he acknowledges that he was provided a wheelchair and the
assistance of a wheelchair-pusher for the purpose of navigating the prison. He does not allege any
circumstances in which the possession of leg braces and wheelchair gloves would have allowed him
to access to a program, service or activity of the prison that was otherwise unavailable.
-32-

G. Warden Woods
Defendant Woods, the warden at Chippewa, allegedly denied Plaintiff’s grievance
about the fact that some of Plaintiff’s personal property was not identified on his property list when
his property was packed up for transfer from Chippewa to Alger. Woods also allegedly refused to
reclassify Plaintiff’s security level from Level II to Level I, because there were no wheelchairaccessible cells available at Level I.
1. Denial of grievance
The denial of a prisoner grievance does not give rise to a constitutional claim.
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). Thus, § 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).
Plaintiff claims that Woods “lied and violated policy” by denying the grievance, but
even if that is the case, Woods did not violate Plaintiff’s constitutional rights. 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
-33-

Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); 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, 461 U.S. at 249; Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001);
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 an interest
protected by the Fourteenth Amendment.
Furthermore, 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 protectible 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.
2. Security classification
Woods’ refusal to reclassify Plaintiff also does not state a § 1983 claim. As indicated,
Plaintiff does not have a constitutional right to be incarcerated in a particular facility or to be held
in a specific security classification. See Olim, 461 U.S. at 245; Moody, 429 U.S. at 88 n.9;
Meachum, 427 U.S. at 228-29; Harris, 79 F. App’x at 759. Nor does Plaintiff have a right to due
process in connection with being reclassified to Level II security, as he does not allege facts
-34-

indicating that his increased security classification imposed an “atypical and significant hardship on
[him] in relation to the ordinary incidents of prison life.” See Sandin, 515 U.S. at 484.
On the other hand, Plaintiff states a possible ADA/RA claim against Woods regarding
his refusal to reclassify Plaintiff to Level I or to transfer Plaintiff to another facility. See 28 C.F.R.
§ 35.152(b)(2)(i) (providing that public entitles may not “place inmates or detainees with disabilities
in inappropriate security classifications because no accessible cells or beds are available,” “[u]nless
it is appropriate to make an exception”).
H. Deputy Warden Mackie
Defendant Mackie allegedly participated in several security classification hearings
for Plaintiff, after he was convicted of misconducts for refusing to return to his housing unit. At
several such hearings, Mackie informed Plaintiff that he would be reclassified to a higher security
level if he did not return to his housing unit. Eventually, Mackie reclassified Plaintiff to Level IV,
which required him to be moved to Round Unit. When Plaintiff refused to go to Round Unit,
Mackie told him that he must go “or die at Marquette.” (Compl., docket #1-1, Page ID#37.) Mackie
stated that Plaintiff would never be transferred to another facility. In addition, Mackie told Plaintiff
that he would be allowed to access his legal footlockers only once a month, after a written request.
1. Security classification
Mackie’s decision to reclassify Plaintiff to Level IV for repeatedly disobeying orders
did not violate Plaintiff’s constitutional rights. As indicated supra with respect to Defendants Krick
and Woods, Plaintiff does not have a constitutional right to be housed in a specific security
classification or location within the prison system.

-35-

Plaintiff asserts that he feared for his safety in Level IV because another inmate in
Round Unit who was confined to a wheelchair was beaten to death by his cell-mate. The Eighth
Amendment requires prison staff “to take reasonable measures to guarantee the safety of the
inmates” in their care. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see also Farmer, 511 U.S.
at 833 (“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other
prisoners.”). To establish a violation of this right, Plaintiff must show that he was exposed to a
“substantial risk of serious harm” and that Defendant Mackie was deliberately indifferent to this risk.
See Farmer, 511 U.S. at 834; see also Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990);
McGhee v. Foltz, 852 F.2d 876, 880-81 (6th Cir. 1988). While a prisoner does not need to prove that
he has been the victim of an actual attack to bring a claim, he must at least establish that he
reasonably fears such an attack. Thompson v. Cnty. of Medina, 29 F.3d 238, 242-43 (6th Cir. 1994)
(holding that plaintiff has the minimal burden of “showing a sufficient inferential connection”
between the alleged violation and inmate violence to “justify a reasonable fear for personal safety”).
Plaintiff alleges no facts from which to infer that inmates in Plaintiff’s condition were
more likely to be harmed in Round Unit, let alone that Mackie was aware of and deliberately
indifferent to such a risk. Plaintiff asserts that one reason for the attack was that the attacker thought
that his cell mate “stinks.” (Compl., Page ID#36.) Plaintiff asserts that he also “stinks” because he
wears an undergarment (id.); however, a single attack by one particular prisoner on his cell mate does
not translate into a substantial risk of harm for all other prisoners in the unit who share similar
characteristics with the victim.
In addition, Mackie’s statement that Plaintiff must return to Round Unit or “die” at
Marquette, which Plaintiff claims was a death threat, and Mackie’s statement that Plaintiff would
-36-

never be transferred to another facility, are not sufficient to state a claim. Statements by prison
officials are generally not sufficient in themselves to give rise to a constitutional claim. See Ivey
v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); 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.”).
Plaintiff contends that Mackie’s statements and decision to increase his security level
constitute retaliation in violation of the ADA/RA. “Both the ADA and the RA prohibit retaliation
against any individual because of his or her opposing practices made unlawful by the Acts or
otherwise seeking to enforce rights under the Acts.” A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ.,
711 F.3d 687, 696 (6th Cir. 2013) (citing 42 U.S.C. § 12203 and 28 C.F.R. § 35.134 (ADA); 29
U.S.C. § 794(a) and 29 C.F.R. § 33.13 (RA)). “The Acts have a similar scope and aim; for purposes
of retaliation analysis, cases construing either Act are generally applicable to both.” Id. at 697. To
state a claim, Plaintiff must allege that: (1) he engaged in an activity protected by the Acts; (2) the
defendant took adverse action against him; and (3) there is a causal link between his protected
activity and the adverse action. See id.

-37-

In Plaintiff’s case, the allegations clearly indicate that Mackie’s statements and
actions were motivated by Plaintiff’s refusal to obey orders, not Plaintiff’s complaints about his cell
conditions, or any other protected conduct. Mackie expressly warned Plaintiff that his security level
would be increased if he did not comply with orders to return to his unit. Plaintiff was then
convicted of two more misconducts for disobeying orders and, as promised, Mackie increased his
security level. When Plaintiff again refused to go to his unit, Mackie told him that he would have
to go to Round Unit or “die” in Marquette. Refusing to comply with the orders of a prison officer
is not itself protected conduct; it is not a legitimate means of opposing practices made unlawful by
the ADA/RA or of enforcing rights under those statutes. See Sullivan v. River Valley Sch. Dist., 197
F.3d 804, 814 (6th Cir. 1999) (“[I]t was incumbent upon appellant to challenge [the board’s] actions
through legal recourse, as appellant had done in the past, and not to engage in misconduct and
insubordination to enforce his rights.”) (alterations in original).
Plaintiff implies that Mackie discriminated against him because, during the time that
Plaintiff’s security classification increased to Level IV, non-disabled prisoners who refused to house
in Marquette Unit and Round Unit were transferred to other prison facilities. Plaintiff offers no
allegations to support a plausible claim against Mackie, however. He does not identify any inmates
who were transferred, the circumstances in which those transfers occurred, or Mackie’s role in the
transfer process.
2. Legal property
It is not clear whether Plaintiff actually complied with Defendant Mackie’s direction

-38-

to submit a written request for access to his legal property,11 but in any event, Plaintiff alleges no
consequences as a result of being denied access to his legal property for a period of time. He does
not allege that he suffered “actual injury” to a non-frivolous legal claim. See Lewis, 518 U.S. at 349.
Nor does he allege that he was treated differently due to his disability. Thus, he does not state a
claim against Mackie.
I. Deputy Warden Horton
Defendant Horton participated in the security classification hearings with Defendant
Mackie. For the same reasons that Plaintiff does not state a claim against Defendant Mackie
regarding the security classification proceedings, Plaintiff does not state a claim against Defendant
Horton.
J. RUM Norton
In May 2012, Defendant Norton allegedly disposed of some of Plaintiff’s personal
and medical property after a contraband hearing that did not comply with prison policy. In August
2012, Norton confiscated some of Plaintiff’s property when Plaintiff moved from Level II to Level
IV; that property was lost and never made it to Alger. In October 2012, Norton told Plaintiff that
he would “never go home,” and he would “die in prison,” after Norton discovered that Plaintiff was
preparing a complaint about his prison conditions. Later, Norton denied Plaintiff’s grievance about
a missing package that Plaintiff had received from his family.
Defendant Norton’s statements to Plaintiff do not constitute punishment within the
meaning of the Eighth Amendment. Ivey, 832 F.2d at 954-55; Johnson, 357 F.3d at 546. Also, they

11

Plaintiff’s allegations suggest that he requested access directly from the officers in his unit, rather than sending
a kite, because the officers told him to return to his cell.

-39-

are not sufficiently adverse to state a plausible retaliation claim under the First Amendment. The
adverseness inquiry is an objective one, and does not depend on how a particular plaintiff reacted.
The relevant question is whether the defendants’ conduct is “capable of deterring a person of
ordinary firmness”; the plaintiff need not show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606
(6th Cir. 2002) (emphasis in original). A specific threat of harm may satisfy the adverse-action
requirement if it would deter a person of ordinary firmness from exercising his or her First
Amendment rights, see, e.g., Thaddeus-X, 175 F.3d at 396, 398 (threat of physical harm); Smith v.
Yarrow, 78 F. App’x 529, 542 (6th Cir. 2003) (threat to change drug test results). However, certain
threats or deprivations are so de minimis that they do not rise to the level of being constitutional
violations. Thaddeus-X, 175 F.3d at 398; Smith, 78 F. App’x at 542. Norton was clearly upset by
Plaintiff’s complaint, but his statements were not adverse in themselves and did not threaten any
meaningful harm. Plaintiff does not allege any circumstances in which Norton could ensure that
Plaintiff would never be released from prison; indeed, Plaintiff was transferred to another facility
(away from Norton) only three days later. Thus, Norton’s statements do not give rise to a claim.
To the extent Plaintiff claims that Norton deprived him of property in retaliation for
protected conduct, there is no plausible connection alleged in the complaint between these
deprivations and any protected conduct. Thus, Plaintiff does not state a retaliation claim against
Norton. Furthermore, Plaintiff does not state a due process claim. Because Plaintiff alleges an
unauthorized deprivation at a non-compliant hearing in one instance, and a random/negligent
deprivation of property in another, Plaintiff must plead that post-deprivation remedies provided by
the state are inadequate. See Hudson, 468 U.S. at 533; Copeland, 57 F.3d at 479-80. He has not
done so.
-40-

Furthermore, Norton’s allegedly improper rejection of Plaintiff’s grievance does not
give rise to a claim because a violation of state law or prison policy is not equivalent to a violation
of Plaintiff’s constitutional rights, and Plaintiff lacks a protected interest in an effective grievance
procedure. Walker, 128 F. App’x at 445; Argue, 80 F. App’x at 430. Thus, for purposes of stating
a § 1983 claim, Norton’s rejection of the grievance is of no constitutional significance. Similarly,
Plaintiff does not state an ADA/RA claim against Norton, because there is no allegation that Norton
engaged in any conduct that would violate those statutes.
K. Property Room Officer Smith
Smith determined that Plaintiff’s personal and legal property needed to be evaluated
for contraband at contraband hearings, and he sent Plaintiff’s medical property to the medical unit.
Smith also destroyed some of Plaintiff’s typewriter ribbons by unsealing them and allowing them
to dry out. In addition, Plaintiff lost some property when he moved to Alger, and he implies that
Defendant Smith is responsible for the loss, because Smith stated that Plaintiff would be “glad” to
have “half a duff[el] bag” of property. (Compl., Page ID#48.)
Regarding the property held for review as contraband and the property sent to the
medical unit, Plaintiff does not state a claim because Smith merely referred this property to another
officer for review; he was not responsible for its final disposition. Plaintiff claims that Smith
misapplied policy when determining that some property might be contraband, but a misapplication
of prison policy does not itself give rise to a federal claim. Laney, 501 F.3d at 581 n.2; McVeigh,
1995 WL 236687, at *1. Moreover, Plaintiff had an opportunity to challenge the contraband notice
at a hearing; thus, the notice itself did not deprive Plaintiff of any rights.

-41-

Regarding the destruction of Plaintiff’s typewriter ribbons and the property that went
missing when Plaintiff transferred to Alger, these losses were negligent and/or “unauthorized
intentional” deprivations of property that do not violate the Due Process Clause unless the state
failed to provide an adequate post-deprivation remedy. Hudson, 468 U.S. at 533. Plaintiff does not
allege that state post-deprivation remedies were inadequate to remedy his losses; thus, he does not
state a due process claim. See Copeland, 57 F.3d at 479-80. For the foregoing reasons, Plaintiff
does not state a § 1983 claim against Defendant Smith. Also, there are no facts alleged that would
state an ADA/RA claim against Smith.
L. Hearing Investigator (“Unknown Party #2”)
An unidentified hearing investigator at Chippewa allegedly violated prison policy by
failing to meet with Plaintiff within two days after Defendant Smith issued a contraband removal
notice for Plaintiff’s legal property. Also, the hearing investigator allegedly allowed the contraband
hearing to proceed rather than resolve the matter with Plaintiff, despite the fact that the property
complied with policy. As indicated supra, a violation of prison policy does not in itself give rise to
a § 1983 claim. Moreover, though the hearing investigator did not resolve the contraband charge,
Plaintiff had an opportunity to challenge that charge at a hearing before Defendant O’Brien. See
Section III.H supra. Thus, the hearing investigator did not deprive Plaintiff of his right to due
process or any other constitutional rights. Nor did he violate the ADA/RA.
M. Librarian (“Unknown Party #3”)
An unidentified librarian at Chippewa allegedly took Plaintiff’s audio book players
and put them in the library, for no reason. Plaintiff does not have a constitutional right to keep audio
book players in his cell, and to the extent that the librarian deprived Plaintiff of his personal property,
-42-

he does not allege that state post-deprivation remedies were inadequate to remedy this loss. In
addition, Plaintiff does not allege that the librarian discriminated against him on account of his
disability or that the players are necessary to provide access to programs, services or benefits of the
facility that are available to other, non-disabled prisoners. Thus, he does not state a claim against
the librarian.
N. Grievance Coordinator Trierweiler
Defendant Trierweiler allegedly refused to accept grievances that Plaintiff attempted
to file regarding his lost property, even though the grievances complied with prison policies. When
Plaintiff attempted to comply with Defendant’s specific instructions about filing a proper grievance,
the grievance was rejected. When Plaintiff attempted to file it at the next level of the grievance
process, he did not receive a response. Defendant Trierweiler’s alleged misapplication of prison
policy does not state a constitutional claim. Moreover, as indicated supra, Plaintiff does not have
a protected right to an effective grievance procedure; thus, Defendant Trierweiler’s improper
rejection of, or failure to respond to, Plaintiff’s grievances did not violate Plaintiff’s due process
rights. Consequently, Plaintiff does not state a claim against Defendant Trierweiler.
O. ARUS Schram
Defendant Schram allegedly refused to correct errors and inconsistencies in Plaintiff’s
prison record. These errors, Plaintiff claims, will adversely affect his ability to obtain early release
on parole. Prisoners do not have an absolute constitutional right to the removal of inaccurate
information from their files. Carson v. Little, 1989 WL 40171, at *1 (6th Cir. April 18, 1989)
(“[T]he mere retention of inaccurate information in an inmate’s file does not amount to a
constitutional violation.”) (citing Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (per curiam)).
-43-

Moreover, Plaintiff does not have a constitutional right to be conditionally released on parole before
the expiration of his 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, 107 S.Ct. 2415, 96
L.Ed.2d 303 (1987). Rather, a liberty interest is present only if state law entitles an 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, 1164-65 (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.
Because Plaintiff has no constitutional right to the removal of errors in his prison
record, and no liberty interest in parole, he cannot complain that Defendant Schram’s refusal to
correct those errors violated his constitutional rights. See Caldwell v. McNutt, 158 F. App’x 739,
741 (6th Cir. 2006) (rejecting § 1983 claim against an ARUS for providing inaccurate information
to the Michigan Parole Board, because the prisoner “has no constitutionally-protected liberty interest
in the granting of parole or the following of parole procedures”). Plaintiff’s contention that Schram’s
conduct was retaliatory is wholly conclusory. Thus, he fails to state a claim against Defendant
Schram.

-44-

P. Defendants Brown, Ives and O’Connor
At this stage of the proceedings, the Court concludes that Plaintiff’s complaint states
a possible retaliation and/or ADA/RA claim against Defendants Brown, Ives and O’Connor, who
allegedly removed many of the special accommodations for his disability, including his
accommodation for barrier-free housing, which was removed shortly after he complained to Deputy
Warden Brown about Sumner.
IV.

General allegations

In addition to the allegations involving specific Defendants, which are discussed in
the previous Section, Plaintiff’s complaint contains a variety of other allegations that do not clearly
involve any of the individuals named as Defendants in this action. For instance, Plaintiff claims that:
(1) he was deprived of his medical menu and medications for a period of time at Carson City and
Chippewa; (2) he was forced to reuse a full undergarment overnight at Chippewa, and unidentified
officers refused to provide a new undergarment or let him obtain one from the medical unit; (3) he
was harassed and called names by unidentified staff in Marquette Unit before he was placed in
segregation; (4) his request for a transfer from Chippewa was denied; (5) unidentified staff at
Chippewa lost his walker, told him that he needed to have his audio players inspected, would not
respond to his requests for access to his legal footlockers, and denied him paper; (6) mailroom staff
at Alger prevented from sending a postage-free letter; and (7) unidentified staff at Alger would not
provide specific underwear to prevent his sanitary pad from leaking and provided him with boots that
do not work with his leg braces. Also, Plaintiff claims that the facilities where he was housed,
particularly Chippewa, do not comply with ADA regulations for the design of wheelchair-accessible
facilities. See, e.g., 28 C.F.R. § 35.152(b)(3) (requiring prison facilities to implement “reasonable
-45-

policies, including physical modifications to additional cells in accordance with the 2010 Standards,
so as to ensure that each inmate with a disability is housed in a cell with the accessible elements
necessary to afford the inmate access to safe, appropriate housing”).
These allegations are not sufficient to state a § 1983 claim against any of the named
Defendants. 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, a plaintiff must
make sufficient allegations to give a defendant fair notice of the claim); 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”). Defendants may not be held liable under § 1983 for the unconstitutional conduct of other
officers under a theory of respondeat superior or vicarious liability. See Iqbal, 556 U.S. at 676 (“[A]
plaintiff must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.”). Plaintiff has not alleged any involvement by any of the
named Defendants in the conduct or conditions mentioned in this Section. Consequently, they are
not sufficient to state a claim under § 1983.
On the other hand, at this stage of the proceedings, the Court concludes that the
allegations mentioned in this Section, particularly those that concern the allegedly inadequate
-46-

conditions of confinement at Chippewa, suffice to state a claim against the MDOC or the State of
Michigan under the ADA/RA. Plaintiff does not expressly name the MDOC or the State of
Michigan as a separate defendant, but all of his official-capacity claims against MDOC employees
are essentially claims against the State of Michigan. See Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits . . . represent only another way of
pleading an action against an entity of which an officer is an agent.”); Mingus, 591 F.3d at 482 (“It
is undisputed that since [the defendant, a state correctional facility’s health unit manager] has been
sued in her official capacity, [the plaintiff prisoner’s] ADA claim is, for all intents and purposes,
against the state of Michigan as the real party-in-interest.”). Thus, to the extent that the allegations
in this Section state an ADA/RA claim, that claim may proceed against Defendants Brown, Ives,
Krick, Woods, and/or the unidentified first shift sergeant at Parnall, in their official capacities.
Consequently, the Court will dismiss Defendants Brostoski, Mackie, Marran, Horton, Norton,
O’Brien, Schram, Smith, Theut, Trierweiler, the unknown hearing investigator at Chippewa, and the
unknown librarian at Chippewa.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Brostoski, Mackie, Marran, Horton, Norton, O’Brien, Schram, Smith,
Theut, Trierweiler, the unknown hearing investigator at Chippewa, and the unknown librarian at
Chippewa 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 also dismiss Plaintiff’s claims under § 1983
against Defendants Krick, Woods, and the unknown party identified as a first shift sergeant at
Parnall, but will allow claims under the ADA/RA to proceed against these Defendants (in their
-47-

official capacities only). Also, the Court will allow the action to proceed under § 1983 and the
ADA/RA against Defendants Brown, O’Connor, and Ives.
An Order consistent with this Opinion will be entered.

Dated: June 26, 2014

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

-48-