Moon #469736 v. Jackson et al

Filing 5

OPINION; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
CECIL ALAN MOON,

Case No. 1:17-cv-617
Plaintiff,

Honorable Robert J. Jonker

v.
SHANE JACKSON et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C.
§ 1983. 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. § 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.
Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Muskegon

County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues
Warden Shane Jackson, Deputy Warden Kelice Stoerman, Corrections Officer K. Kroll, and
other unknown corrections officers identified as John or Jane Doe.
Plaintiff alleges that, following a five-year period of being housed in the same
unit at LRF (Baldwin Unit), he and his long-standing cellmate, Harvey Zeek, were moved to
Conklin Unit. While housed in that unit, on October 24, 2015, Plaintiff remembers unsecuring
his cell door and then his next memory is waking up in the Hackley Medical Center. Plaintiff
had suffered a severe beating in his cell. He has no memory of the event. He does not identify
his attacker(s) nor does he mention any specific threat; however, his cellmate notes that both of
their televisions were missing after the incident.
The next day, Plaintiff was transferred from Hackley Medical Center to
Allegiance Hospital in Jackson, Michigan where he underwent surgery to repair his broken jaw
and teeth. The day after his surgery, Plaintiff was transferred to Duane Waters Hospital to
convalesce. He was returned to LRF on December 10, 2015. Plaintiff notes that he has been
permanently disfigured, has suffered nerve damage, and continues to experience pain.
Plaintiff had attempted to obtain his personal property from LRF while he was
convalescing. When his property arrived he discovered several items missing. Upon Plaintiff’s
return to LRF, he discovered that the missing property was not there either.
Plaintiff contends that Defendants are responsible for his injuries and the loss of
his property. Plaintiff seeks compensatory and punitive damages.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must
include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). The court must determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability
requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do
not permit the court to infer more than the 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 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).

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A.

Failure to protect

The Eighth Amendment imposes a constitutional limitation on the power of the
states to punish those convicted of crimes. Punishment may not be “barbarous” nor may it
contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 34546 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the
“unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
(per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the
denial of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also
Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only
concerned with “deprivations of essential food, medical care, or sanitation” or “other conditions
intolerable for prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover,
“[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel
and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.

In order for a prisoner to prevail on an Eighth Amendment claim, he must show
that he faced a sufficiently serious risk to his health or safety and that the defendant official acted
with “‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80
(6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate
indifference standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993)
(applying deliberate indifference standard to conditions of confinement claims)). The deliberate
indifference standard “describes a state of mind more blameworthy than negligence.” Farmer,
511 at 835; see also Whitley v. Albers, 475 U.S. 312, 319 (1986) (“conduct that does not purport

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to be punishment at all must involve more than the ordinary lack of due care for the prisoner’s
interests or safety”). As the Supreme Court explained:
The Eighth Amendment does not outlaw cruel and unusual “conditions”; it
outlaws cruel and unusual “punishments.” An act or omission unaccompanied by
knowledge of a significant risk of harm might well be something society wishes
to discourage, and if harm does result society might well wish to assure
compensation. The common law reflects such concerns when it imposes tort
liability on a purely objective basis. But an official’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of
punishment.
Farmer, 511 U.S. at 837-38 (citations omitted). Thus, accidents, mistakes, and other types of
negligence are not constitutional violations merely because the victim is a prisoner. Acord v.
Brown, No. 93-2083, 1994 WL 679365, at *2 (6th Cir. Dec. 5, 1994) (citing Estelle v. Gamble,
429 U.S. 97, 106 (1976)). Rather, what is required is a conscious disregard of a substantial risk
of harm. Farmer, 511 U.S. at 839.
Plaintiff claims that Defendants Jackson and Stoerman are responsible for
Plaintiff’s physical injuries because they transferred him from the apparent safety of Baldwin
unit to the more dangerous environs of Conklin unit. Plaintiff fails to allege, however, that
Defendants Jackson or Stoerman were aware of a specific risk of harm that awaited Plaintiff in
Conklin unit.
Plaintiff claims that Defendant Kroll was generally responsible for inmate
supervision in Conklin Unit at the time the attack occurred. Plaintiff claims Defendant Kroll
“failed to maintain reasonable scrutiny about the unit.” (Compl., ECF No. 1, PageID.3.) Again,
however, Plaintiff does not allege that Defendant Kroll was aware of any particular risk of harm
to Plaintiff’s safety.

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Plaintiff cannot state a violation of the Eighth Amendment on his failure to
protect claim without alleging that the Defendants were deliberately indifferent to a specific,
known risk to his safety. Farmer, 511 U.S. at 833; Knight v. Gill, 999 F.2d 1020, 1022 (6th Cir.
1993); Gant v. Campbell, 4 F. App’x 254, 256 (6th Cir. 2001). Plaintiff states no facts showing
that any Defendant knew of any specific risk to his safety. Therefore, Plaintiff has failed to state
a claim for violation of his Eighth Amendment rights.
B.

Deprivation of property without due process

The elements of a procedural due process claim are: (1) a life, liberty, or property
interest requiring protection under the Due Process Clause, and (2) a deprivation of that interest
(3) without adequate process. Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir.
2006). Here, Plaintiff claims that Defendant Kroll and one or two John Does corrections officers
deprived Plaintiff of his property without due process.
Plaintiff’s due process claim 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 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; 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.
Accordingly, Plaintiff fails to state a claim for violation of his due process rights.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, pursuant
to 28 U.S.C. § 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

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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.

Date:

August 26, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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