Bentley #127736 v. Allen et al

Filing 6

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 EARL BENTLEY,
Plaintiff,

Case No. 1:15-cv-313

v.

Honorable Janet T. Neff

UNKNOWN ALLEN et al.,
Defendants.
____________________________________/
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 Earl Bentley presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Ionia Correctional Facility (ICF), though the actions about which he
complains occurred while he was housed at the Richard A. Handlon Correctional Facility (MTU).
Both facilities are located in Ionia, Michigan. Plaintiff sues the following MTU employees:
Assistant Resident Unit Manager (ARUM) (unknown) Allen; Mail Room Supervisor P. Dickson;
and Assistant Resident Unit Supervisor (ARUS) (unknown) Wenglikowski.
Plaintiff alleges that, in September 2013, he requested “pertinent legal documents”
from an unknown source on a request under the Freedom of Information Act (FOIA), MICH. COMP.
LAWS § 15.231 et seq., which he claims were relevant to his filing a timely application for leave to
appeal to the Michigan Supreme Court. (Compl. ¶ 7, docket #1, Page ID#3.) On approximately
October 7, 2013, Plaintiff’s wife obtained documents and forwarded them to Plaintiff by priority
mail. Plaintiff alleges that he did not receive the documents promptly, which he claims caused him
to miss his supreme court deadline. Plaintiff asked ARUS Rosen about his documents, and Rosen
instructed him to send a kite to the mailroom if he did not receive a response. On October 18, 2013,
Plaintiff spoke with Defendant Allen about the missing documents. Allen instructed Plaintiff to send
a kite to Kim Grant, which Plaintiff did. Grant responded on October 20, 2013, advising Plaintiff
that his legal materials had been rejected and that his complaint would be handled through the
process applicable to mail rejection. On October 31, 2013, Plaintiff filed a grievance about the
matter. Plaintiff complains that the notice of intent to reject his mail was not issued until “around
November 26, 2013.” (Compl. ¶ 9, docket #1, Page ID#3.) He alleges that he received a hearing
on the notice of intent on November 26, 2013. Plaintiff acknowledges, however, that he had

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received the approved portion of his documents on November 6, 2013. (See Pl.’s Let. to Rozen,
docket #1-1, Page ID#20.)1
On December 18, 2013, Defendant Wenglikowski came to Plaintiff’s cell and
directed Plaintiff to accompany Wenglikowski to his office to discuss a disbursement form Plaintiff
sent to Wenglikowski on November 26, 2013, authorizing the return of the rejected mail to
Plaintiff’s wife. Plaintiff learned that the documents had not been mailed yet, and he filed a
grievance against Wenglikowski. Wenglikowski told Plaintiff, “I received an e-mail from the
warden’s office regarding your complaint against me. . . . You need not worry about the
complaint/grievance because you just bought yourself a ticket out of here . . . .” (Compl., Page
ID#4.) Plaintiff previously had filed a grievance against Wenglikowski, and he filed another
grievance after the meeting. Plaintiff subsequently was transferred from MTU to ICF.
On January 2, 2014, after Plaintiff had been transferred, ICF Counselor Smith called
Plaintiff out of his cell and informed him that he had received an e-mail from MTU about Plaintiff’s
legal papers, saying that the papers would be transferred to ICF. Plaintiff received a letter
explaining that resolution of his Step II grievance would take longer than provided in MDOC Policy
Directive 03.02.130, and informing Plaintiff that he would receive a response by January 21, 2014.
On January 28, 2014, Counselor Smith told Plaintiff that the Step II response had been sent to MTU
rather than ICF. Plaintiff filed his Step III appeal on or about February 1, 2014.2

1

In the same letter, Plaintiff originally typed that he received the notice on “11/06/2013,” but “06” was handchanged to “26,” possibly to conform with the allegations in Plaintiff’s complaint. (See Pl.’s Let. to Rozen, docket #1-1,
Page ID#20.) In addition, according to the Step I grievance response signed by Defendant Dickson on November 13,
2013, the mail rejection was issued on November 5, 2013, indicating that 129 pages of mail had been excerpted because
they violated mail policy 05.03.118 ¶ MM by including the personal information of witnesses. (See Step I response,
docket #1-1, Page ID#13.)
2

Plaintiff alleges that he filed his Step III grievance on January 2, 2014, but that date appears to be a
typographical error, given that the Step II grievance response was not issued until January 14, 2014. (Plaintiff therefore
could not have filed his appeal before that date. (See Step II grievance response, docket #1-1, Page ID#14.) The Court

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Plaintiff’s Step III grievance appeal was denied on April 1, 2014. (Step III response,
Page ID#15.) On July 12, 2014, Plaintiff was sent a memorandum notifying him that the time limit
under MDOC Policy Directive 04.07.112 for disposing of his legal papers had expired and that
Plaintiff had ten days from the date of the memorandum to have his property picked up by a visitor
or to mail the property out of the facility, or it would be destroyed.3 Plaintiff complains that his
property ultimately was destroyed.
Plaintiff alleges that Defendant Allen violated his First Amendment rights when
Allen failed to resolve Plaintiff’s grievances in a satisfactory manner. Plaintiff also asserts that
Defendant Dickson violated his procedural and substantive due process rights when she failed to
comply with prison policies requiring her to provide him a rejection notice promptly after
impounding his mail and to issue a timely notice of consent to reject the materials. In addition,
Plaintiff complains that Defendant Wenglikowski retaliated against him for filing grievances by
having him transferred to ICF. Plaintiff also suggests that Defendants’ failure to timely deliver the
legal mail sent by his wife resulted in his inability to file a timely application for leave to appeal to
the Michigan Supreme Court, thereby depriving him of his right to access the courts.
Plaintiff seeks declaratory relief, together with compensatory and punitive damages.

has assumed that the date “1-2-14" was a typographical transposition of “2-1-14.” In any event, because the Step III
grievance was considered on the merits, the date is not relevant to the disposition of the case.
3

In his complaint, Plaintiff alleges that the memorandum notifying him of the time limit for disposing of his
property was sent to him on “1-2-14.” (Compl. ¶ 13, Page ID#4.) However, Plaintiff has attached to his complaint a
copy of the notification, which is dated “July 12, 2014.” (7/12/14 Notification, Page ID#27.) The Court has used the
only reasonable date, the date of the notification memorandum, which, by signature, Plaintiff acknowledged receiving
on July 14, 2014. (Id.)

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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
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

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by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
A.

Defendants Allen & Dickson

Plaintiff alleges that he told Defendant Allen on October 7, 2013 that he had not
received certain legal mail sent to him, but Allen failed to resolve the problem. Plaintiff alleges that
Dickson failed to handle his grievance properly and failed to ensure that the rejection of his
documents was done in accordance with MDOC Policy Directive 05.03.118 and that Plaintiff’s
documents were returned to Plaintiff’s wife.
To the extent Plaintiff complains that Allen and Dickson did not properly supervise
their subordinates or take action to resolve his complaints, he fails to state a 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, 575-76 (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 576; 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.

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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. Because Plaintiff alleges no active conduct by Defendants
Allen and Dickson, he fails to state a claim against them.
Even had Plaintiff alleged active conduct against Allen and Dickson, his allegations
fail to state a claim.
1.

First Amendment – Grievance Process

Plaintiff claims that Defendant Allen violated his First Amendment right to redress
of grievances by not handling Plaintiff’s grievance properly. The Petition Clause of the First
Amendment guarantees the right “to petition the Government for a redress of grievances.” U.S.
CONST. amend. I. The Sixth Circuit long has recognized that a prisoner has an “undisputed First
Amendment right to file grievances against prison officials on his own behalf.” See Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000); see also Smith v. Campbell, 250 F.3d 1032, 1037 (6th
Cir. 2001); Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). As a consequence, a prisoner may
not be subjected to retaliation for filing a grievance. Id. However, this right does not encompass
the right to a particular grievance procedure or to a favorable result. Indeed, the Sixth Circuit and
other circuit courts repeatedly have held that there is no constitutionally protected right to an
effective prison grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th
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). Because Plaintiff does not allege that Allen retaliated against him for

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filing a grievance, he fails to state a First Amendment claim against Allen.
2.

Procedural due process
Plaintiff suggests that Defendant Dickson deprived him of due process when he failed

to ensure that Plaintiff received a timely notice of rejection and a timely hearing. Specifically, he
argues that he did not receive a timely Notice of Package/Mail Rejection under MDOC Policy
Directive 05.03.118 ¶ 00 and that he did not receive a prompt hearing under ¶ PP of that policy.
To the extent Plaintiff claims that Defendants failed to follow prison policy, his claim
is not cognizable in this action. Claims under § 1983 can only be brought for “deprivation of rights
secured by the constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 924 (1982). Defendants’ 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); Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001); 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 58081. As a consequence, Plaintiff fails to state a claim based on the violation of MDOC policy.
Plaintiff next claims that Defendant Dickson violated his right to due process when
she allowed his property to be held for several weeks without a hearing and then allowed it to be
destroyed. “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

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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). The Court will assume
without deciding that Plaintiff had a protected property interest in the receipt of his 129 pages of
mail.
Nevertheless, Plaintiff’s claim that he was deprived of his property without due
process is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in 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’s claim is premised upon allegedly unauthorized acts of state officials, 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 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. 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

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loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013). 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.
Moreover, by his own admission, Plaintiff received all of the process to which he was
entitled. He received notice that his mail had been rejected as early as October 20, 2013, when Ms.
Grant responded to his complaint. Plaintiff also admitted in a letter he sent on December 5, 2013,
that he received the portion of the mailing that was not rejected on November 6, 2013, and he knew
at that time that the other materials were being withheld. (See Pl.’s Let. to Rozen, docket #1-1, Page
ID#20.) In addition, Plaintiff admits that he received a hearing about the rejection on November 26,
2013. (Compl. ¶ 10, docket #1, Page ID#3.) Plaintiff does not even argue that the hearing was
inadequate. Plaintiff’s sole complaint is that his notice and hearing were not as timely as he would
have liked or as he believes were required by prison procedures. The Due Process Clause does not
guarantee that the procedure will produce a correct decision. “It must be remembered that even if
a state decision does deprive an individual of life, [liberty], or property, and even if that decision is
erroneous, it does not necessarily follow that the decision violated that individual’s right to due
process.” Martinez v. California, 444 U.S. 277, 284 n.9 (1980). “[T]he deprivation by state action
of a constitutionally protected interest in ‘life, liberty or property’ is not in itself unconstitutional;

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what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon
v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original).
For all these reasons, Plaintiff’s allegations that Defendant Dickson deprived him of
due process in the handling of his mail fails to state a claim.
3.

Access to the Courts

Plaintiff alleges that, because the documents mailed by his wife were delayed, he was
unable to file a timely application for leave to appeal to the Michigan Supreme Court. Arguably,
Plaintiff intends to allege that he was denied access to the courts.
It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states
must protect the right of access to the courts by providing law libraries or alternative sources of legal
information for prisoners. Id. at 817. The Court further noted that in addition to law libraries or
alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen
to draft legal documents, notarial services to authenticate them, and with stamps to mail them.” Id.
at 824-25. The right of access to the courts also prohibits prison officials from erecting barriers that
may impede the inmate’s access to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir.
1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff
must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of

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legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal
claim. Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
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.
In the instant case, Plaintiff alleges in a conclusory fashion that, because he did not
receive all of the papers mailed by his wife, he was unable to file a timely application for leave to
appeal in the Michigan Supreme Court. Because he wholly fails to describe the nature of the
underlying claim he intended to pursue in that court, he fails to allege actual injury within the
meaning of Lewis, 518 U.S. at 353, and Christopher, 536 U.S. at 415.

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Moreover, according to the public records of the Michigan Court of Appeals, the only
case Plaintiff could possibly have sought to bring to the Michigan Supreme Court in 2013 was an
appeal from the denial of his second motion for relief from his judgment of conviction, which he
filed in the Michigan Court of Appeals on February 8, 2013. That appeal was dismissed by the court
of appeals on May 3, 2013, because “an appeal from the denial or rejection of a successive motion
for relief from judgment is prohibited by MCR 6.502(G)(1).” People v. Bentley, No. 314695 (Mich.
Ct. App. May 3, 2013) (Ord. of Dismissal), http://publicdocs.courts.mi.gov:81/coa/public/orders/
2013/314695(12)_order.pdf. Under the same court rule, Plaintiff was prohibited from filing an
appeal to the Michigan Supreme Court. MICH. CT. R. 6.502(G)(1). As a result, any appeal would
have been frivolous. Further, even if Plaintiff was entitled to file an application for leave to appeal
to the Michigan Supreme Court, he would have been required to do so by June 28, 2013, 56 days
after the decision of the Michigan Court of Appeals. See MICH. CT. R. 7.302(C)(2) (providing that
the time for filing a criminal appeal is 56 days). By October 7, 2013, the date of the first conduct
alleged in his complaint, any appeal period had long expired. Any attempt to appeal therefore would
have been frivolous.
For all the foregoing reasons, Plaintiff fails to state an access-to-the-courts claim.
B.

Defendant Wenglikowski

Plaintiff alleges that Defendant Wenglikowski retaliated against him for filing a
grievance by having Plaintiff transferred to IDF. As previously discussed, retaliation based upon
a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X,
175 F.3d at 394. 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

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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, 250 F.3d at 1037 (citing Mount Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Plaintiff cannot show that his transfer to ICF from MTU was an adverse action taken
against him for filing a grievance against Defendant Wenglikowski. 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). “Since prisoners are expected to endure more than the average citizen, and since transfers
are common among prisons, ordinarily a transfer would not deter a prisoner of ordinary firmness
from continuing to engage in protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir.
2005). See, e.g., Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003) (“transfer from one prison
to another prison cannot rise to the level of an adverse action because it would not deter a person
of ordinary firmness from the exercise of his First Amendment rights”) (internal quotation marks
omitted). The Sixth Circuit has recognized that a transfer may rise to the level of adverse action if
a foreseeable consequence of a transfer would be to substantially inhibit a prisoner’s ability to access
the courts, see Siggers-El, 412 F.3d at 702; Johnson v. Beardslee, No. 1:06-CV-374, 2007 WL
2302378, at *5 (W.D. Mich. Aug. 8, 2007), or if the transfer would result in a prisoner’s placement
in segregation or in an area of the prison used to house mentally disturbed inmates. See Thaddeus-X,
175 F.3d at 398; see also Hill, 630 F.3d at 468.

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No such additional harm is alleged here. Plaintiff’s transfer was from one level II
facility to another level II facility, both of which are located in Ionia, Michigan. Such transfers from
the general population of one prison to the general population of another prison are not typically an
adverse action. See Yarrow, 78 F. App’x at 543 (collecting cases); see also Hill, 630 F.3d at 473;
Thaddeus-X, 175 F.3d at 398. Plaintiff therefore fails to state a retaliation claim against Defendant
Wenglikowski.
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: June 10, 2015

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

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