Lacy Jr. # 141241 v. Duell et al
OPINION; Order 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
GEORGE LEE LACY JR.,
Case No. 1:14-cv-537
Honorable Janet T. Neff
RANDY DUELL et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983
and the “Privacy Act” (presumably, 5 U.S.C. § 552a). 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
Breedlove, Galvan-Casas, Goodsen, Prelesnik, Stoddard and Huss. The Court will serve the
complaint against Defendants Duell, Arksey, Oversmith and Norwood.
Plaintiff George Lee Lacy, Jr.1 is a state prisoner incarcerated with the Michigan
Department of Corrections (MDOC) at the Chippewa Correctional Facility (URF), though the events
giving rise to his complaint occurred while he was incarcerated at the Ionia Correctional Facility
(ICF). Defendants are employees of the MDOC and/or Michigan State Industries (MSI), a bureau
of the MDOC: MSI Regional Superintendent Randy Duell; MSI Plant Manager Deanna Arksey;
MSI Plant Supervisors Crystal Galvan-Casas and Janice Pleasant; ICF Deputy Wardens Nanette
Norwood and Erica Huss; ICF Facility Inspector Betty Goodsen; ICF Grievance Coordinator M.
Breedlove; ICF Warden John Prelesnik; ICF Acting Warden Cathy Stoddard; and ICF employee
Brooke A. Oversmith.
According to the complaint and affidavit in support, Plaintiff was hired to work for
MSI in 2010, while he was incarcerated at ICF. In June 2011, he began to experience “problems”
with Defendants Duell, Arksey, and Galvan-Casas. (Compl., docket #1, Page ID#3.) One day that
month, Plaintiff left work due to a “severe” migraine headache caused by “stressful demeaning
conditions” at his work. (Pl.’s Aff., docket #1-1, Page ID#12.) He was then laid off work for two
weeks by Defendants Duell, Arksey, and Galvan-Casas, without explanation. After that time, his
supervisors would “single him out,” along with other black workers, and demean him on a daily
basis. (Compl., docket #1, Page ID#7.) Galvan-Casas would taunt Plaintiff, saying that Plaintiff’s
hands were too big for him to sew effectively, and that Plaintiff was too big and old to be an efficient
Plaintiff refers to himself as “George Lacy El/Jr” in the complaint. (See Compl. 1, docket #1, Page ID#1.)
The Court will refer to Plaintiff as he is identified in the MDOC’s Offender Tracking Information System. See
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=141241 (accessed July 15, 2014).
worker. Also, though other prisoners were given whatever jobs they requested, Plaintiff was forced
to work “undesirable, non promotional jobs.” (Id.) Defendants Arksey and Galvan-Casas allegedly
told Plaintiff that he was needed on the “T-Shirt line,” and they were not interested in moving him.
(Pl.’s Aff, Page ID#13.)
Defendant Pleasant was aware of the conduct by Galvan-Casas, and told Plaintiff to
“stay clear” of Galvan-Casas. (Id.) Pleasant also warned Plaintiff that if he filed a grievance, Duell
and Arksey “were going to have the Deputy Warden and Classification Director transferred.” (Id.)
Pleasant attempted to assist Plaintiff, and gave him permission to speak with Defendant Arksey
about his problems with Galvan-Casas.
Plaintiff spoke with Defendant Arksey on March 27, 2012, about “harassment” by
his supervisor and about being discriminated against in regard to consideration for higher-paying
positions. (Compl., Page ID#4.) Arksey promised to schedule a meeting to resolve the issues raised
by Plaintiff, but she never did. Plaintiff filed a grievance about this on March 30, 2012.2 He also
wrote Inspector Goodsen a letter, requesting to speak with her about his issues with MSI. She never
responded. The next day, Plaintiff discussed his issues with Defendant Duell, who promised to
speak with the other supervisors about them.
On April 3, 2012, Duell told Plaintiff that he needed more time to sort out the issues
raised in their discussion. Plaintiff informed Duell that he had already filed a grievance regarding
those issues. Duell then became upset, telling Plaintiff, “you’ve made a mistake by filing a
grievance, there are some places for prisoners like you, who don’t handle problems in house.” (Id.
at Page ID#4.) Duell told Plaintiff that the “polar bears” will be delivering Plaintiff mail, and that
The grievance was rejected at Steps I, II, and III of the grievance process. Defendant Arksey rejected it at Step
I and Warden Prelesnik rejected it at Step II.
Duell could not have prisoner employees writing grievances on his staff. (Pl.’s Aff., docket #1-1,
Page ID#12.) Arksey also “criticized” Plaintiff for filing his grievance. (Id. at Page ID#15.)
The following day, Grievance Coordinator Breedlove received Plaintiff’s grievance,
Defendant Oversmith prepared a security classification screen to transfer Plaintiff to URF, and
Deputy Warden Norwood approved the transfer. Plaintiff was then transferred to URF on April 10,
2012. As a result of the transfer, Plaintiff lost his “high paying job” and was moved several hundred
miles further away from his family, preventing them from visiting him. (Compl., Page ID#8; Pl.’s
Aff., Page ID#15.) Also, when Plaintiff received his personal property the day after his transfer, two
of his footlockers were destroyed and his legal paperwork was missing.
On April 19, 2012, Plaintiff filed a grievance claiming that he had been transferred
in retaliation for filing a grievance against MSI staff. Defendant Breedlove “arbitrarily” rejected
the grievance, and Defendants Huss and Stoddard approved the rejection at Steps I and II of the
grievance process. (Compl., Page ID#5; Pl.’s Aff, Page ID#14). Plaintiff appealed the denial of his
grievance, and his appeal was rejected by Warden Stoddard. During the grievance investigation,
MSI staff (including Duell and Arksey) justified the transfer by stating, falsely, that Plaintiff quit
his job and would not report to work on assigned days. (Compl., Page ID#7; Pl.’s Aff, Page ID#14.)
In May 2012, Plaintiff wrote a letter to the ICF Classification Director, asking for an
updated work evaluation. He never received a response, so he filed a grievance about the issue in
June 2012. The grievance was rejected by Breedlove as untimely. Plaintiff’s appeals from
Breedlove’s decision were denied.
Plaintiff also wrote letters to Inspector Goodsen seeking her assistance, but she did
not respond. Plaintiff filed a grievance about Goodsen on June 7, 2012. It was rejected by
Defendant Breedlove on June 15. Plaintiff also filed a grievance regarding the destruction of his
personal property. It was denied at all steps of the grievance process.
Based on the foregoing, Plaintiff claims that (1) he was transferred to another prison
in retaliation for his protected conduct, (2) MSI supervisors harassed and discriminated against him
in violation of the Equal Protection Clause; (3) the rejection of his grievances prevented him
exercising his right to seek redress of grievances; and (4) the denial of his grievances violated his
rights under the Privacy Act. As relief, Plaintiff seeks compensatory and punitive damages.
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 federal right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A. Privacy Act
Plaintiff claims that Defendants violated the “Privacy Act,” which the Court
construes as a reference to 5 U.S.C. § 552a. That statute, however, “applies exclusively to federal
agencies.” Schmitt v. City of Detroit, 395 F.3d 327, 331 (6th Cir. 2005). It does not apply to
Defendants, who are employees of a state agency. Thus, Plaintiff does not state a claim under the
B. Equal Protection
Plaintiff claims that his work supervisors singled him out and discriminated against
him by verbally harassing him and forcing him to work in undesirable jobs. Plaintiff alleges that
other prisoners were assigned whatever jobs they requested. (Compl., Page ID#7.) The Equal
Protection Clause commands that no state shall “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV, § 1. Plaintiff implies that he was treated
differently because he is black, but his allegations are wholly conclusory. Plaintiff fails to allege
any facts to support a claim of intentional race discrimination by either direct or indirect evidence.
See Davis v. Prison Health Servs., 679 F.3d 433, 440 (6th Cir. 2012) (discussing the distinction
between direct and indirect methods of proving discrimination). He alleges no facts constituting
direct evidence of discriminatory motive or purpose. See Umani v. Mich. Dep’t of Corr., 432 F.
App’x 453, 458 (6th Cir. 2011). Moreover, he fails to allege a prima facie claim under the indirect,
burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973), because he fails
to allege that any other prisoner treated differently was similarly situated in all relevant respects.
See Umani, 432 F. App’x at 458. To be a similarly-situated person member of another class, “the
comparative [prisoner] ‘must have dealt with the same [decisionmaker], have been subject to the
same standards, and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or their employer’s treatment of them for it.’”
Id. at 460 (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
Plaintiff provides no specific factual allegations to support his contention of discriminatory conduct.
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.
Moreover, to the extent Plaintiff asserts that he was singled out for mistreatment and
was forced to stay in his job for reasons other than membership in an identifiable group, his claim
fails for an additional reason. The Supreme Court has recognized that the kind of scrutiny used for
class-of-one equal protection claims is not properly applied to employment decisions and other
forms of discretionary decision making:
There are some forms of state action, however, which by their nature involve
discretionary decisionmaking based on a vast array of subjective, individualized
assessments. In such cases the rule that people should be “treated alike, under like
circumstances and conditions” is not violated when one person is treated differently
from others, because treating like individuals differently is an accepted consequence
of the discretion granted. In such situations, allowing a challenge based on the
arbitrary singling out of a particular person would undermine the very discretion that
such state officials are entrusted to exercise.
Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 603 (2008). MSI officials presumably have wide
discretion to determine which prisoners should be assigned to a particular job, based on a “vast array
of subjective, individualized assessments.” See id. In that case, Plaintiff’s claim that he was singled
out for mistreatment in relation to his job cannot stand. For all the foregoing reasons, Plaintiff does
not state an equal protection claim.
C. Defendant Galvan-Casas
1. Verbal harassment
Defendant Galvan-Casas, one of Plaintiff’s work supervisors, allegedly harassed
Plaintiff by taunting him and making demeaning statements. The use of harassing or degrading
language by a prison official, although unprofessional and deplorable, does not rise to constitutional
dimensions. 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.”); Clark
v. Turner, No. 96-3265, 1996 WL 721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment and
idle threats are generally not sufficient to constitute an invasion of an inmate’s constitutional
rights.”); Brown v. Toombs, No. 92-1756, 1993 WL 11882 (6th Cir. Jan. 21, 1993) (“Brown’s
allegation that a corrections officer used derogatory language and insulting racial epithets is
insufficient to support his claim under the Eighth Amendment.”). Accordingly, Plaintiff fails to state
claim against Defendant Galvan-Casas arising from his alleged verbal abuse.
2. Prison job
Plaintiff asserts that he was laid off from his prison job for two weeks by GalvanCasas and other Defendants, without explanation. He also contends he was prevented from moving
to other, more desirable jobs. He implies that Defendants Arksey and Galvan-Casas were
responsible for keeping him in his position on the t-shirt line, because they told him that he was
needed at that position and they did not want to move him.
The Sixth Circuit has consistently found that prisoners have no constitutionally
protected liberty 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)). Because Plaintiff did not have a right to work in any prison
job, let alone the job of his choosing, Defendants did not deprive him of any protected rights when
they laid him off for two weeks and prevented him from moving to another job. Consequently,
Plaintiff does not state a § 1983 claim against Defendant Galvan-Casas.
D. Supervisory Liability / Failure to Act
Plaintiff alleges that certain Defendants failed to act in response to Plaintiff’s
complaints or denied Plaintiff’s grievances about other prison officials. For instance, Inspector
Goodsen did not respond to Plaintiff’s request for assistance. Also, Warden Prelesnik, Acting
Warden Stoddard and Deputy Warden Huss denied Plaintiff’s grievances at various stages of the
grievance process. The foregoing allegations do not state a claim under § 1983, because 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). 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). The
acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere
failure to act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881,
888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor
denied an administrative grievance or failed to act based upon information contained in a grievance.
See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendants Goodsen,
Prelesnik, Stoddard or Huss engaged in any active unconstitutional behavior. Accordingly, he fails
to state a claim against them.
E. Grievance Process
Grievance Coordinator Breedlove allegedly rejected several of Plaintiff’s grievances
for improper reasons, and Defendants Duell and Arksey made false statements in response to
Plaintiff’s grievances. Plaintiff apparently claims that Defendants intentionally deprived him of the
ability to pursue redress through the grievance process. The Sixth Circuit has indicated that the
filing of grievances is constitutionally protected conduct for which a prisoner cannot be subjected
to retaliation. Shehee, 199 F.3d at 300-301. However, there is no inherent constitutional right to
an effective prison grievance procedure. Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002);
Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Carpenter v. Wilkinson, No. 99-3562, 2000
WL 190054, at *2 (6th Cir. Feb. 7, 2000); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th
Cir. Mar. 28, 1994). Moreover, Michigan law does not create an interest in the grievance process.
See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan, 23 F. App’x at 407; Wynn, 1994 WL
105907, at *1. Thus, Defendants’ conduct in connection with that process did not deprive him of
any constitutional rights.
In any event, it is clear that Plaintiff was not deprived of the opportunity to seek
redress through the grievance process. He merely disagreed with the result. Even when his
grievances were rejected, he was able to appeal that decision. See MDOC Policy Directive
03.02.130 ¶ I (effective July 9, 2007) (“A grievant whose grievance is rejected may appeal the
rejection to the next step as set forth in this policy.”). Thus, the rejection of his grievances did not
deprive him of the ability to seek redress through the grievance process.
Plaintiff implies that Defendant Breedlove’s actions violated prison policy, but 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. Consequently, Plaintiff does not state a claim against Defendant Breedlove.
F. Defendant Pleasant
Plaintiff asserts that one of his supervisors, Defendant Pleasant, was aware of the
conduct by Galvan-Casas, but apparently she did nothing more than tell Plaintiff to stay away from
Galvan-Casas. She also warned Plaintiff that filing a grievance would result in Arksey and GalvanCasas attempting to have the Classification Director and Deputy Warden transfer Plaintiff to another
facility. Plaintiff does not allege that Pleasant engaged in any unconstitutional conduct, however.
Plaintiff also asserts that unidentified supervisors would single him out for abuse and unequal
treatment relative to other prisoners, and prevented him from obtaining a more desirable position,
but he does not specifically allege that Defendant Pleasant took part in such conduct. To the
contrary, he contends that Pleasant “did everything in her power to promote and assist [Plaintiff].”
(Pl.’s Aff., docket #1-1, Page ID#13.) Plaintiff apparently sues her because she was “responsible
for the supervision, safety, welfare, and equal treatment of all inmates working under her
supervision.” (Compl., Page ID#2.) However, as the Court indicated with respect to Defendants
Goodsen, Prelesnik, Stoddard and Huss, Defendant Pleasant is not liable for the conduct of others,
and she cannot be held liable under § 1983 merely because she failed to act in response to the
conduct of her co-workers. In short, Plaintiff has not alleged any active unconstitutional conduct
by Defendant Pleasant; thus, he fails to state a claim against her.
G. Defendants Duell, Arksey, Oversmith & Norwood
At this stage of the proceedings, the Court concludes that Plaintiff states a claim
against Defendants Duell, Arksey, Oversmith and Norwood, who were allegedly involved in
transferring Plaintiff to another facility after he filed a grievance complaining about mistreatment
by MSI staff.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff does not state an equal protection claim, a claim under the Privacy Act, or
any claim against Defendants Breedlove, Galvan-Casas, Goodsen, Prelesnik, Stoddard and Huss.
Thus, the latter Defendants will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve the complaint against
Defendants Duell, Arksey, Oversmith and Norwood.
An Order consistent with this Opinion will be entered.
Dated: July 30, 2014
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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