Wilson #646228 v. Schafer et al
OPINION; 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
EFREM STEPHON WILSON,
Case No. 1:14-cv-291
Honorable Janet T. Neff
R. SCHAFER et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Overton, Palmer, Marshall and Grahn. The Court will serve the
complaint against Defendant Schafer.
Plaintiff Efrem Stephon Wilson presently is incarcerated with the Michigan
Department of Corrections (MDOC) at the Michigan Reformatory (RMI). Plaintiff sues the
following RMI personnel: Corrections Officer R. Schafer; Sergeant A. Overton; Warden Carmen
Palmer; Classification Director N. Marshall and Nurse Practitioner Corey Grahn.
Plaintiff alleges that on April 22, 2013, while he was on the yard, Defendant Schafer
ordered him to give a shakedown. Plaintiff complied. While conducting the shakedown, Plaintiff
alleges that Defendant Schafer “was rubbing his penis up on Plaintiff’s buttocks.” (Compl.,
docket #1, Page ID#6.) Plaintiff told Defendant Schafer to back off and requested to see a Sergeant.
Defendant Schafer denied Plaintiff’s request. Plaintiff told Defendant Schafer that he was going to
write to the warden about Defendant Schafer’s conduct. Defendant Schafer replied that he did
nothing but follow policy. Plaintiff returned to his cell and wrote a grievance regarding Defendant
That same day, Plaintiff wrote a letter to Defendant Palmer about Defendant
Schafer’s sexual assault and asked Defendant Palmer to conduct a full investigation into the matter.
Plaintiff alleges that “Defendant Palmer deny to do something about the complaint.” (Id.)
On January 25, 2014, while Plaintiff was in the prison chow hall, Defendant Schafer
walked past Plaintiff and told Plaintiff that “he has a nice butt” and that Defendant Schafer was
“going to feel it one more time soon.” (Id.)
On May 3, 2013, Defendant Overton called Plaintiff to the prison control center to
talk to him about the grievance he filed against Defendant Schafer. Plaintiff alleges that Defendant
Overton “trying to cover up the matter for [sic] Defendant Schafer, Defendant Overton consparcy
[sic] to cover up the matter.” (Id.)
In addition to Defendant Schafer’s alleged conduct, Plaintiff complains about his
inability to obtain a job assignment or transfer to another prison. Plaintiff alleges that by January
2, 2014, he had written “about 8-letters to Defendant [Marshall] asking for a job assignment”
because Plaintiff does not have anyone to send him money. (Id. at Page ID#7.) Plaintiff alleges that
Defendant Marshall denied him a job assignment because Plaintiff is black and a prisoner. Plaintiff
told Defendant Marshall that he has a medical disability and he cannot read or write well. Defendant
Marshall told Plaintiff that he had to have a G.E.D. or high school diploma to obtain a job
assignment. Plaintiff told Defendant Marshall that he had a “document” that said he does not have
to go to school in prison because of his medical disability problem and that MDOC Policy Directive
05.01.100 supports his allegation that he does not have to complete a G.E.D. in order to obtain a job
On January 30, 2014, Plaintiff wrote a prison health care services “kite” to see
Defendant Grahn to ask for a transfer to another prison. Plaintiff told Defendant Grahn that he
cannot walk up the steps to the law library, but he needs time in the law library. Plaintiff told
Defendant Grahn that he has a medical detail that prevents him from having to walk up more than
10 steps and that prison policy provides that if a prison cannot meet a prisoner’s medical needs, the
prisoner can be transferred to a facility where the prisoner’s medical needs can be met. Plaintiff told
Defendant Grahn that if Plaintiff could not be transferred to a prison with a ground floor law library
it would deny him his right to access the court.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
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).
Plaintiff alleges that Defendant Palmer did not “do something about the complaint”
he sent regarding Defendant Schafer’s conduct. (Compl., docket #1, Page ID#6.) It is unclear if
Plaintiff’s “complaint” was a separate letter to Defendant Palmer, or if the complaint was Plaintiff’s
prison grievance. Regardless, however, the analysis is the same.
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). Moreover, § 1983 liability may
not be imposed simply because a supervisor denied an administrative grievance or failed to act based
upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to
allege that Defendant Palmer engaged in any active unconstitutional behavior. Accordingly, he fails
to state a claim against Defendant Palmer.
Plaintiff alleges that on May 3, 2013, Defendant Overton called him to the prison
control center to talk about the grievance Plaintiff had filed against Defendant Schafer.
Additionally, Plaintiff alleges that Defendant Overton was “trying to cover up the matter for [sic]
Defendant Schafer, Defendant Overton consparcy [sic] to cover up the matter.” (Compl., docket #1,
Page ID# 6.)
While a complaint need not contain detailed factual allegations, a plaintiff’s
allegations must include more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). 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. The court need not accept
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
– but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id. at 679 (quoting FED. R. CIV. P.
Plaintiff’s allegations are insufficient to state a claim. Plaintiff fails to make any
factual allegations against Defendant Overton that could support a claim that Defendant Overton
violated any of Plaintiff’s constitutionally protected rights. Consequently, Plaintiff fails to state a
claim against Defendant Overton.
Plaintiff alleges that Defendant Marshall has ignored his repeated written requests
for a job assignment. Additionally, Plaintiff alleges that Defendant Marshall denied him a job
assignment because he is black, because he is a prisoner and because Plaintiff’s medical disabilities
prevent him from obtaining a G.E.D. Finally, Plaintiff alleges that Defendant Marshall’s failure to
give Plaintiff a job because he has not completed a G.E.D. violates MDOC Policy Directive
To the extent that Plaintiff alleges that Defendant Marshall violated MDOC rules,
he fails to state a constitutional claim. A 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.
To the extent that Plaintiff complains that Defendant Marshall’s actions violated his
right to procedural due process, he also fails to state a claim. “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 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).
The Supreme Court long has held that the Due Process Clause does not protect every
change in the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427
U.S. 215, 225 (1976). 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.
The Sixth Circuit has consistently found that prisoners have no constitutionally
protected liberty or property interest in prison employment under the Fourteenth Amendment. See,
e.g., Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (district court properly
dismissed as frivolous the plaintiff’s claim that he was fired from his prison job); Newsom v. Norris,
888 F.2d 371, 374 (6th Cir. 1989) (no constitutional right to prison employment); Ivey v. Wilson,
832 F.2d 950, 955 (6th Cir. 1987) (“[N]o prisoner has a constitutional right to a particular job or to
any job”); Carter v. Tucker, No. 03-5021, 2003 WL 21518730, at *2 (6th Cir. July 1, 2003) (same).
Morever, “as the Constitution and federal law do not create a property right for inmates in a job, they
likewise do not create a property right to wages for work performed by inmates.” Carter, 2003 WL
21518730 at *2 (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991), and James v.
Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989)). Under these authorities, because he has no liberty
or property interest in his prison employment, Plaintiff fails to state a due process claim against
To the extent Plaintiff complains that Defendant Marshall’s actions violated his right
to equal protection, he also fails to state a claim. Plaintiff claims that Defendant Marshall is refusing
to give him a job assignment because he is black, because he has a medical disability and because
he is a prisoner. The Equal Protection Clause of the Fourteenth Amendment provides that a state
may not “deny to any person within its jurisdiction the equal protection of the laws,” which is
essentially a direction that all persons similarly situated should be treated alike. U.S. CONST.,
amend. XIV; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
When a law adversely impacts a “suspect class” such as one defined by race,
alienage, or national origin, or invades a “fundamental right” such as speech or religious freedom,
the rigorous “strict scrutiny” standard ordinarily governs, whereby such laws “will be sustained only
if they are suitably tailored to serve a compelling state interest.” City of Cleburne, 473 U.S. at 440.
However, while a convicted prisoner does not forfeit all constitutional protections by virtue of his
confinement, “lawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights . . .” Price v. Johnston, 334 U.S. 266, 285 (1948). “The limitations on the
exercise of constitutional rights arise both from the fact of incarceration and from valid penological
objectives – including deterrence of crime, rehabilitation of prisoners, and institutional security.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citing, inter alia, Turner v. Safley, 482 U.S.
78, 84 (1987)). To establish a violation of the Equal Protection Clause, an inmate must show that
the defendants purposefully discriminated against him. Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 265 (1977). Such discriminatory purpose must be a motivating factor in
the actions of the defendants. Id. at 265-66.
Plaintiff alleges that Defendant Marshall refuses to give him a job because he is
black. While race is recognized as a suspect class, Plaintiff’s allegations on this point are wholly
conclusory. He merely states that he is being treated differently because he is black. Plaintiff
provides no factual allegations to support his contention, and he identifies no similarly situated
prisoner who was treated differently. Neither does Plaintiff allege any facts to suggest that
Defendant Marshall is purposefully discriminating against him.
Conclusory allegations of
unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Plaintiff alleges that Defendant Marshall also is refusing to give him a job assignment
because he is a prisoner and because he has a medical disability. A state practice generally will not
require strict scrutiny unless it interferes with a fundamental right or discriminates against a suspect
class of individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976). Prisoners are not a
suspect class. See Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998); Hampton v. Hobbs, 106
F.3d 1281, 1286 (6th Cir. 1997). Moreover, disabled persons are not members of a protected class
simply by virtue of their disability. See City of Cleburne, 473 U.S. at 445-46 (holding that the
mentally retarded do not constitute a suspect class and stating in dicta that the mentally ill are not
a suspect class). In addition, as discussed above, prisoners have neither a liberty nor property right
to a prison job assignment, let alone a fundamental right to a prison job assignment under the
Constitution. Because neither a fundamental right nor a suspect class is at issue, Plaintiff’s claim
is reviewed under the rational basis standard. Club Italia Soccer & Sports Org., Inc. v. Charter Twp.
of Shelby, 470 F.3d 286, 298 (6th Cir. 2006). “Under rational basis scrutiny, government action
amounts to a constitutional violation only if it ‘is so unrelated to the achievement of any
combination of legitimate purposes that the court can only conclude that the government’s actions
were irrational.’” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005)). To
prove his equal protection claim, Plaintiff must demonstrate “intentional and arbitrary
discrimination” by the state; that is, he must demonstrate that he “has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Again, Plaintiff’s allegations are wholly conclusory. He merely states that he is
being treated differently because he is a prisoner and because he has a medical disability. Plaintiff
provides no factual allegations to support his contention, nor does he allege any facts to suggest that
Defendant Marshall is intentionally and arbitrarily discriminating against him. Id. As previously
discussed, conclusory allegations of unconstitutional conduct without specific factual allegations
fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Based on the foregoing, Plaintiff fails to state a claim against Defendant Marshall.
Plaintiff alleges that he wrote a kite to see Defendant Grahn to ask for a transfer to
another prison with a law library on the first floor as a result of Plaintiff’s documented inability to
climb more then 10 stairs. Plaintiff alleges that Defendant Grahn’s failure to transfer him to a prison
with a ground floor law library violates his right to access the courts.
It is clearly established that prisoners have a constitutionally protected right of access
to the courts under the First and Fourteenth Amendments. See Lewis v. Casey, 518 U.S. 343, 354
(1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Prison officials have a two-fold duty to protect a prisoner’s right of access to the courts. McFarland
v. Luttrell, No. 94-6231, 1995 WL 150511, at *3 (6th Cir. Apr. 5, 1995). First, they must provide
affirmative assistance in the preparation of legal papers in cases involving constitutional rights, in
particular criminal and habeas corpus cases, as well as other civil rights actions relating to the
prisoner’s incarceration. Id. (citing Bounds, 430 U.S. at 824-28). Second, the right of access to the
courts prohibits prison officials from erecting any barriers that may impede the inmate’s accessibility
to the courts. Id. (citing Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992)); see also Bounds, 430
U.S. at 822 (citing Ex parte Hull, 312 U.S. 546, 549 (1941)). In order to state a viable claim for
interference with his access to the courts, a plaintiff must show actual injury to pending or
contemplated litigation. See Lewis, 518 U.S. at 349; Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511
(6th Cir. 2001); Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000.
In addition, the Supreme Court has strictly limited the types of cases for which there
may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous
claim. Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis
changed actual injury to include requirement that action be non-frivolous).
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.
The Court notes that Plaintiff identifies Defendant Grahn as a nurse practitioner. It
is entirely unclear that Defendant Grahn has any authority to have Plaintiff transferred and Plaintiff
fails to set forth any allegations to suggest that Defendant Grahn has such authority.
Assuming arguendo that Defendant Grahn has transferring authority, Plaintiff fails
to allege sufficient facts to support his claim that Defendant Grahn denied him access to the courts.
Plaintiff fails to allege that he has suffered an actual injury to pending or contemplated litigation.
See Lewis, 518 U.S. at 349. Moreover, a prisoner has no independent constitutional right to
confinement in a particular prison, and has no right to be transferred to a prison facility of his choice.
Olim v. Wakinekona, 461 U.S. 238, 245 (1983).
Based on the foregoing, Plaintiff fails to state a claim against Defendant Grahn.
Plaintiff alleges a claim against Defendant Schafer for violation of his Eighth
Amendment rights. Specifically, Plaintiff alleges that on April 22, 2013, Defendant Schafer rubbed
his penis on Plaintiff’s buttocks during a shakedown on the prison yard. Additionally, Plaintiff
alleges that on January 25, 2014, Defendant Schafer told Plaintiff that “he has a nice butt” and that
Defendant Schafer was “going to feel it one more time soon.” (Compl., docket #1, Page ID#6.)
At this juncture in the proceedings, Plaintiff allegations warrant service on Defendant
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Overton, Palmer, Marshall, and Grahn will be dismissed for failure to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The
Court will serve the complaint against Defendant Shafer.
An Order consistent with this Opinion will be entered.
Dated: April 22, 2014
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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