Sango #252200 v. Hammond et al
Filing
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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
ROBERT D. SANGO,
Plaintiff,
Case No. 1:14-cv-283
v.
Honorable Janet T. Neff
UNKNOWN HAMMOND 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. 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.
Factual Allegations
Plaintiff Robert D. Sango presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Ionia Maximum Correctional Facility (ICF). He sues the following
ICF employees: Property Room Officer (unknown) Hammond; Assistant Resident Unit Officer R.
Ault; and Mailroom Worker (unknown) Pattison.
Plaintiff’s amended complaint is brief, containing less than one page of factual
allegations. Plaintiff asserts that, after he requested on December 16, 2013 a certified copy of his
prisoner trust account statement for filing an action against Deputy Warden Erica Huss,1 unnamed
administrators have been retaliating against him in a variety of ways: not giving him indigent status;
not giving him access to legal materials such as books and supplies; and not giving him unspecified
health care. According to Plaintiff, Defendant Ault allegedly organized other officers to physically
assault Plaintiff, harass Plaintiff, and retaliate against Plaintiff. Plaintiff’s complaint contains no
additional allegations concerning this vast scheme. Instead, he focuses his complaint on a single
incident, which he contends was retaliatory.
Plaintiff alleges that a friend sent him a book from Inner Traditions, entitled The
Secret History of Poltergeists and Haunted Houses. Inner Traditions had a member of its publishing
group, Simon and Schuster, send the book. When the book arrived, Plaintiff was notified that his
book was being rejected because it was not sent from an approved publisher. Defendant Ault told
Plaintiff that he either had to pay to return the book or it would be destroyed. Plaintiff gave
Defendant Ault a disbursement authorization to send the book back, but the disbursement was
neither processed nor rejected. Plaintiff subsequently asked Defendant Hammond about the book,
1
Plaintiff references Sango v. Huss et al., No. 1:14-cv-2 (W.D. Mich.), which was filed on January 3, 2014.
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saying that he had not been notified whether the book had been returned or destroyed. Hammond
allegedly told Plaintiff that he had nothing coming.
Plaintiff does not argue that he should have been permitted to keep the book. Instead,
he asserts that the book should have been returned at his expense and that he should have received
a copy of the documents indicating how the matter had been resolved. He also alleges that
Defendants’ failure to provide him documentation was retaliatory.
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
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
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pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); 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).
First, as previously noted, Plaintiff does not squarely allege that he was
wrongfully deprived of the book. Even if he had made such allegations, however, his claim would
be barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in other part by
Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person deprived of property by a
“random and unauthorized act” of a state employee has no federal due process claim unless the state
fails to afford an adequate post-deprivation remedy. If an adequate post-deprivation remedy exists,
the deprivation, although real, is not “without due process of law.” Parratt, 451 U.S. at 537. This
rule applies to both negligent and intentional deprivation of property, as long as the deprivation was
not done pursuant to an established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36
(1984). Because Plaintiff alleges unauthorized acts of a state official, he must plead and prove the
inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th
Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit
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authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983 due-process
action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; Policy
Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims
asserting tort or contract claims “against the state and any of its departments, commissions, boards,
institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The Sixth Circuit
specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court
action would not afford him complete relief for the deprivation, either negligent or intentional, of
his personal property.
Second, to the extent that Plaintiff complains that he was entitled to receive
documentation but did not, he arguably claims that the failure to provide that documentation violated
his right to due process. “The Fourteenth Amendment protects an individual from deprivation of
life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th
Cir. 2005). To establish a Fourteenth Amendment procedural due process violation, a plaintiff must
show that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis
of a procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty
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or property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set
forth the standard for determining when a state-created right creates a federally cognizable liberty
interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is entitled
to the protections of due process only when the sanction “will inevitably affect the duration of his
sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995).
Plaintiff appears to allege that, under MDOC policy, he should have received a copy
of documents reflecting whether the book was returned and his account charged for the mailing, or
whether the book was destroyed. Claims under § 1983 may not be based upon alleged violations
of state law, nor may federal courts order state officials to comply with their own law. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Plaintiff does not enjoy any
federally protected liberty or property interest in state procedure. See Olim v. Wakinekona, 461 U.S.
238, 250 (1983); Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994). Moreover, the failure to
receive paperwork is neither atypical nor significant within the meaning of Sandin, 515 U.S. at 48687. It therefore is not protected by the Due Process Clause. Id. As a consequence, Plaintiff fails
to state a due process claim based on his failure to receive documentation.
Third, Plaintiff alleges that Defendants deprived him of documentation in retaliation
for his December 16, 2013 request for a certified copy of his prisoner trust account statement for
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purposes of filing an federal complaint against Erica Huss. Retaliation based upon a prisoner’s
exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175
F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim,
a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was
taken against him that would deter a person of ordinary firmness from engaging in that conduct; and
(3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a
plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating
factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037
(6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)).
The Court will assume that Plaintiff has met the first prong of the retaliation standard.
However, he fails entirely to allege either the second or third prong.
The second prong – the adverseness inquiry – is an objective one; it 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). Mere failure to receive
documentation would not deter a reasonable person from engaging in protected conduct.
With respect to the third prong, Plaintiff alleges no more than that Defendants’
actions occurred sometime after he attempted to sue Erica Huss, who is not named as a party in this
action. In narrow circumstances, temporal proximity may be “‘significant enough to constitute
indirect evidence of a causal connection so as to create an inference of retaliatory motive.’”
Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d
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408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are not
sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004).
Plaintiff’s allegation of causation are wholly conclusory. He therefore fails to state a retaliation
claim.
For all these reasons, Plaintiff’s complaint fails to state a federal 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 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
$505.00 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 $505.00 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: May 6, 2014
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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