Smith #267009 et al v. Pallas et al

Filing 17

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
DERRICK LEE SMITH,
Plaintiff,
v.

Case No. 1:17-cv-618
Honorable Paul L. Maloney

D.J. PALLAS et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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 against all Defendants, except for
Defendants Goulet and Vanderwagen.
Discussion
I.

Factual allegations
Plaintiff Derrick Lee Smith is presently incarcerated with the Michigan Department

of Corrections (MDOC) at the Muskegon Correctional Facility (MCF) in Muskegon County,

Michigan. In his amended complaint,1 Plaintiff sues the following employees of the MDOC:
Administrative Law Examiner / Hearing Officer D.J. Pallas; Hearing Administrator Richard
Russell; Corrections Officers (unknown) Goulet and (unknown) Vanderwagen; General Office
Administrator Mail Room Clerks J. Dietz, A. Karel, A. Hall, and S. Payton; Transfer Coordinator
Brianna Newton-Newman; Director Heidi Washington; Director of the Offender Tracking
Information System (OTIS) Shawn Cassidy; and Corrections Facility Administrator Norma
Killough. He also sues former MDOC employee Manuela Anna Briki, Nurse Juliette Bird (a
former Sheriff’s Deputy for the Detroit Police Department), Detective Virginia Wilkinson of the
Detroit Police Department, Wayne County Circuit Court Records Office Supervisor Stacy
Bernardo, and an individual located in Florida, Tray Hollenbeck.
A. Substance Abuse Misconduct
Defendants Goulet and Vanderwagen allegedly lied on November 22, 2016, and
December 2, 2016, about finding tobacco products on a “homemade shelf” in an area under
Plaintiff’s control. (Am. Compl., ECF No. 13, PageID.152.) Plaintiff contends that they planted
evidence to support these lies, and their purpose was to retaliate against Plaintiff, because Plaintiff
had filed a lawsuit against their co-workers, Farber and Lemaire.

Vanderwagen allegedly

convinced Goulet to search Plaintiff’s cell based on a false pretext, so that they could plant the
evidence. Plaintiff also alleges that Goulet and Vanderwagen destroyed his “legal work” when
searching his cell. (Id., PageID.158.)
Apparently, as a result of Goulet and Vanderwagen’s actions, Plaintiff was charged
with substance abuse. On December 2, 2016, Officer Pallas conducted a misconduct hearing for
the charge of substance abuse. At the beginning of the hearing, Pallas told Plaintiff that he was

1

Plaintiff failed to file his initial complaint on the requisite form, so the Court ordered him to file an amended
complaint on the form.

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aware of Plaintiff’s lawsuits against Pallas’ friends, Farber and Lemaire. Pallas allegedly stated
that he would find Plaintiff guilty based solely on those lawsuits. Plaintiff asked that Pallas to
recuse himself, but Pallas refused to do so. Pallas then found Plaintiff guilty for reasons that
Plaintiff contends are false. Pallas told Plaintiff that he would put falsehoods into the reasons for
his findings to ensure that Plaintiff would know not to file another lawsuit against one of Pallas’
co-workers.
Plaintiff apparently requested a rehearing and Defendant Russell denied Plaintiff’s
request. According to Plaintiff, Russell denied the request because “the previous out of place ticket
counts as a substance abuse ticket.” (Id., PageID.150.) Plaintiff claims that this is a “false” reason
to deny a request for a rehearing. (Id.) Plaintiff claims that Russell did not follow state law or
procedure.
Plaintiff sought judicial review of the misconduct decision in state court. In the
state-court proceedings, Russell allegedly claimed that he did not sign the decision denying
Plaintiff’s request for a rehearing, but the state court rejected this argument. Russell also
apparently claimed that Plaintiff did not exhaust his administrative remedies, but the state court
rejected this argument as well. The state court eventually denied Plaintiff’s appeal for reasons that
are not identified in Plaintiff’s complaint.
B. Rejection of Mail
From December 2015 through May 2016, Defendants Dietz, Karel, Hall, and
Payton allegedly rejected issues of the Prison Legal News that were intended for Plaintiff.
Defendant Killough allegedly instructed these defendants to do this.

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C. Prison Transfer
Defendant Newton-Newman allegedly provided false reasons for transferring
Plaintiff to another prison on June 25, 2017.
D. Lies about Plaintiff
Defendants Briki, Bird, and Wilkinson allegedly committed acts of “character
ass[ass]ination” against Plaintiff by lying about him. (Id., PageID.160.) Although the content of
their statements is not clear, Defendants apparently accused Plaintiff of kidnapping and rape.
E. Watch List
Defendant Washington allegedly allowed Defendants to keep Plaintiff on a
“priority 2 watch list” for reasons that are false. (Id., PageID.161.)
F. MDOC Website
Defendant Cassidy maintains the MDOC website.

Plaintiff’s profile on the

MDOC’s Offender Tracking Information System (OTIS) allegedly shows false information about
Plaintiff’s criminal convictions.
G. Prison File
Defendant Bernardo allegedly put the wrong judgment of sentence into Plaintiff’s
prison file. Plaintiff contends that the judgment of sentence in his file actually belongs to Derrick
Lee Moore.
Based on the foregoing, Plaintiff claims that Defendants have violated a number of
his constitutional rights. As relief, Plaintiff seeks damages.
II.

Voluntary Dismissal
In a motion filed shortly after his amended complaint (ECF No. 15), Plaintiff asks

to withdraw his claims against Defendants Briki, Bird, Wilkinson, Cassidy, and Bernardo. This

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motion will be granted. Rule 41(a) permits voluntary dismissal of an action before the opposing
party has filed a response. Fed. R. Civ. P. 41(a)(1)(A)(i). No party has filed a response because
the complaint has not been served. Consequently, these defendants will be dismissed.
III.

Misjoinder
Plaintiff’s allegations concern several different incidents. Federal Rule of Civil

Procedure 20(a) limits the joinder of parties in single lawsuit, whereas Federal Rule of Civil
Procedure 18(a) limits the joinder of claims. Rule 20(a)(2) governs when multiple defendants may
be joined in one action: “[p]ersons . . . may be joined in one action as defendants if: (A) any right
to relief is asserted against them jointly, severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the action.” Rule 18(a) states: “A
party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has
against an opposing party.”
Courts have recognized that, where multiple parties are named, as in this case, the
analysis under Rule 20 precedes that under Rule 18:
Rule 20 deals solely with joinder of parties and becomes relevant only when
there is more than one party on one or both sides of the action. It is not concerned
with joinder of claims, which is governed by Rule 18. Therefore, in actions
involving multiple defendants Rule 20 operates independently of Rule 18. . . .
Despite the broad language of Rule 18(a), plaintiff may join multiple
defendants in a single action only if plaintiff asserts at least one claim to relief
against each of them that arises out of the same transaction or occurrence and
presents questions of law or fact common to all.
7 Charles Allen Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure Civil
§ 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009),
and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14, 2008); see also

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Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted by Rule 20
unless both commonality and same transaction requirements are satisfied).
Therefore, “a civil plaintiff may not name more than one defendant in his original
or amended complaint unless one claim against each additional defendant is transactionally related
to the claim against the first defendant and involves a common question of law or fact.” Proctor,
661 F. Supp. 2d at 778. When determining if civil rights claims arise from the same transaction
or occurrence, a court may consider a variety of factors, including, “the time period during which
the alleged acts occurred; whether the acts of . . . are related; whether more than one act . . . is
alleged; whether the same supervisors were involved, and whether the defendants were at different
geographical locations.” Id. (quoting Nali v. Mich. Dep’t of Corr., 2007 WL 4465247, *3 (E.D.
Mich. Dec. 18, 2007)).
Permitting the improper joinder in a prisoner civil rights action undermines the
purpose of the PLRA, which was to reduce the large number of frivolous prisoner lawsuits that
were being filed in the federal courts. See Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004). It
allows a prisoner to proceed with multiple, improperly-joined claims and defendants in a single
action without incurring the risk of obtaining a “strike” for purposes of 28 U.S.C. § 1915(g), should
any of those claims turn out to be frivolous.
The Seventh Circuit has explained that a prisoner may not join in one complaint all
of the defendants against whom he may have a claim, unless the prisoner satisfies the requirements
of Rule 20(a)(2):
Thus multiple claims against a single party are fine, but Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant 2.
Unrelated claims against different defendants belong in different suits, not only to
prevent the sort of morass that [a multi]-claim, [multi]-defendant suit produce[s]
but also to ensure that prisoners pay the required filing fees-for the Prison Litigation

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Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner
may file without prepayment of the required fees. 28 U.S.C. § 1915(g) . . . .
A buckshot complaint that would be rejected if filed by a free person -- say,
a suit complaining that A defrauded the plaintiff, B defamed him, C punched him,
D failed to pay a debt, and E infringed his copyright, all in different transactions -should be rejected if filed by a prisoner.
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Brown v. Blaine, 185 F. App’x 166,
168-69 (3d Cir. 2006) (allowing an inmate to assert unrelated claims against new defendants based
on actions taken after the filing of his original complaint would have defeated the purpose of the
three strikes provision of PLRA).
Defendant Pallas is the first defendant named in the action, and Plaintiff’s
allegations against Pallas concern a misconduct hearing regarding a charge of substance abuse.
Defendants Goulet and Vanderwagen allegedly provided the evidence on which the charge was
based. Moreover, Defendant Russell allegedly reviewed the misconduct conviction through a
motion for a rehearing. Thus, Plaintiff’s claims against Defendants Pallas, Goulet, Vanderwagen,
and Russell are transactionally related. Plaintiff’s claims against the other remaining defendants
are not related. They have no connection to Plaintiff’s misconduct conviction for substance abuse.
Under Rule 21 of the Federal Rules of Civil Procedure, “[m]isjoinder of parties is
not a ground for dismissing an action.”

Instead, Rule 21 provides two remedial options:

(1) misjoined parties may be dropped on such terms as are just; or (2) any claims against misjoined
parties may be severed and proceeded with separately. See DirecTV, Inc. v. Leto, 467 F.3d 842,
845 (3d Cir. 2006); Carney v. Treadeau, No. 07-cv-83, 2008 WL 485204, at *2 (W.D. Mich. Feb.
19, 2008); Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924,
940 (E.D. Mich. 2008); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682
(6th Cir. 1988) (“Parties may be dropped . . . by order of the court . . . of its own initiative at any

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stage of the action and on such terms as are just.”). “Because a district court’s decision to remedy
misjoinder by dropping and dismissing a party, rather than severing the relevant claim, may have
important and potentially adverse statute-of-limitations consequences, the discretion delegated to
the trial judge to dismiss under Rule 21 is restricted to what is ‘just.’” DirecTV, 467 F.3d at 845.
At least three judicial circuits have interpreted “on such terms as are just” to mean
without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008)
(quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, 467 F.3d
at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an
otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the
dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846-47; Michaels
Bldg. Co., 848 F.2d at 682.
In this case, Plaintiff brings causes of action under 42 U.S.C. § 1983. For civil
rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich.
Comp. Laws § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam);
Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). Furthermore,
“Michigan law provides for tolling of the limitations period while an earlier action was pending
which was later dismissed without prejudice.” Kalasho v. City of Eastpointe, 66 F. App’x 610,
611 (6th Cir. 2003).
The alleged rejection of Plaintiff’s mail by Defendants Dietz, Karel, Hall, Payton,
and Killough occurred in 2015 and 2016, well within the three-year period of limitations.
Similarly, Newton-Newman’s involvement in Plaintiff’s prison transfer occurred in 2017. None
of the claims against these defendants is at risk of being time-barred. Thus, these defendants will
be dismissed for misjoinder.

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Plaintiff does not indicate when Defendant Washington allegedly allowed Plaintiff
to remain on a watch list, and Plaintiff does not articulate any specific allegations against
Defendant Hollenbeck; thus, the Court cannot determine whether dismissal of these defendants for
misjoinder would prejudice Plaintiff’s claims against them. Thus, only Defendants Dietz, Karel,
Hall, Payton, and Killough will be dismissed for misjoinder at this time.
IV.

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

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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).
A. Director Washington
Plaintiff alleges that MDOC Director Washington allowed unidentified defendants
to keep him on a watch list, even though the reason for putting Plaintiff on the watch list is false.
Plaintiff alleges that he had a hearing on the issue, but he was not given an opportunity to challenge
the evidence supporting the watch-list designation. He asserts that he brought a “challenge” to the
designation to Director Washington, but she told him that the decision was “upheld.” (Compl.,
PageID.161.)
The crux of Plaintiff’s claim is that Director Washington failed to correct the
actions of other officials; however, Washington may not be held liable for the unconstitutional
conduct of her 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

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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. 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 Washington engaged in any active unconstitutional behavior.
Accordingly, he fails to state a claim against her.
B. Hollenbeck
Plaintiff identifies Hollenbeck as a defendant, but makes no allegations about him
in the body of the complaint. Where a person is named as a defendant without an allegation of
specific conduct, the claim against that defendant is subject to dismissal, even under the liberal
construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188,
190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named
defendant was involved in the violation of his rights); Frazier v. Michigan, 41 F. App’x 762, 764
(6th Cir. 2002) (dismissing plaintiff’s claims where the complaint did not allege with any degree
of specificity which of the named defendants were personally involved in or responsible for each
alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th
Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant);
Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims
against those individuals are without a basis in law as the complaint is totally devoid of allegations
as to them which would suggest their involvement in the events leading to his injuries”). Plaintiff’s
allegations against Hollenbeck fall far short of the minimal pleading standards under Fed. R. Civ.

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P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled to
relief”). Thus, Hollenbeck will be dismissed.
C. Administrative Law Examiner / Hearing Officer Pallas
Plaintiff alleges that Defendant Pallas conducted the hearing for Plaintiff’s
misconduct charge regarding substance abuse. Substance abuse is a Class I misconduct. MDOC
Policy Directive 03.03.105, Attach. A (July 3, 2015). All Class I misconduct hearings must be
conducted by hearing officers from the MDOC’s Department of Licensing and Regulatory Affairs.
Id. ¶ M. These officers are required to be attorneys and are under the direction and supervision of
a special hearings division in the Michigan Department of Corrections. See Mich. Comp. Laws
§ 791.251(e)(6). Their adjudicatory functions are set out in the statute, and their decisions must
be in writing and must include findings of facts and, where appropriate, the sanction imposed. See
Mich. Comp. Laws § 791.252(k). There are provisions for rehearings, see Mich. Comp. Laws
§ 791.254, as well as for judicial review in the Michigan courts. See Mich. Comp. Laws
§ 791.255(2). Accordingly, as the title of his position implies, Defendant Pallas is a professional
in the nature of an administrative law judge. See Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir.
1988). As such, he is entitled to absolute judicial immunity from inmates= § 1983 suits for actions
taken in his capacity as a hearing officer. Id.; and see Barber v. Overton, 496 F.3d 449, 452 (6th
Cir. 2007); Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007); cf. Pierson v. Ray, 386 U.S. 547,
554-55 (1967) (judicial immunity applies to actions under § 1983 to recover for alleged deprivation
of civil rights). Defendant Pallas’ decision to find Plaintiff guilty of the misconduct charge was
an action taken in his capacity as a hearing officer. Thus, he is immune from Plaintiff’s claim.

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D. Hearings Administrator Russell
When a prisoner disagrees with the results of a Class I misconduct hearing, he may
submit a request for a rehearing to the hearings administrator. MDOC Policy Directive 03.03.105
¶ SSS. Plaintiff allegedly requested a rehearing after his misconduct conviction and Defendant
Russell denied it. This does not state a claim under § 1983, for several reasons. First, like Pallas,
Russell enjoys judicial immunity for any claims related to this decision. See Williams v. Bournay,
No. 98-1169, 1999 WL 196532, at *2 (6th Cir. Mar. 22, 1999) (hearing administrator entitled to
judicial immunity).
Second, Defendant Russell did not convict Plaintiff of a misconduct or punish him;
Russell merely determined whether to grant a rehearing. In other words, Russell did not actively
participate in the misconduct conviction; at most, he reviewed the actions of another MDOC
employee. Russell’s failure to correct the allegedly improper decision by Pallas does not give rise
to liability. Grinter, 532 F.3d at 576 (failure to act in response to administrative appeals does not
subject supervisors to liability). Plaintiff has not alleged that Russell engaged in any active conduct
with respect to the misconduct conviction that deprived Plaintiff of his constitutional rights.
Third, administrative appeals are remedial; they are not part of the due process
rights afforded to prison inmates. See Boles v. Weist, No. 87–1862, 1988 WL 58866 (6th Cir. June
10, 1988) (“Plaintiff does not have an inherent constitutional right to appeal his disciplinary
conviction”); Lowe v. Sockey, 36 F. App’x 353, 360 (10th Cir. 2002) (state prisoner’s allegations
that prison officials lost his appeal of prison discipline hearing failed to state a due process
violation claim since Fourteenth Amendment does not provide due process right to such an appeal).
Plaintiff also alleges that Russell denied Plaintiff his right of access to the courts
because Russell allegedly made false statements when defending an action that Plaintiff brought

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against him in state court. However, Russell’s false statements clearly did not impede Plaintiff’s
access to the courts, and Plaintiff was not harmed by them. Plaintiff himself acknowledges that
the state court rejected Russell’s statements. Moreover, defending an action in court, as Russell
did, is categorically distinct from impeding an inmate’s ability to access that court.
Plaintiff further alleges that Russell did not comply with his obligations under state
law and state administrative rules. 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). Section 1983 does not provide redress for a violation of a state law.
Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th
Cir. 1994). Similarly, a defendant’s 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). Accordingly, Plaintiff’s assertion that Russell violated state law and/or policy
fails to state a claim under § 1983. In short, Plaintiff does not state a viable claim against Russell
under § 1983.
E. Officers Goulet and Vanderwagen
Plaintiff alleges that Defendants Goulet and Vanderwagen planted evidence and
lied so that Plaintiff would be convicted of a misconduct that resulted in Plaintiff being deprived
of visitation rights.2 At this stage of the proceedings, the Court finds that Plaintiff’s allegations
against Goulet and Vanderwagen suffice to state a claim. See Cale v. Johnson, 861 F.2d 943, 950
(6th Cir. 1988) (finding that intentionally and maliciously framing a prisoner for a disciplinary
charge, with a resulting loss of liberty for the prisoner, is a violation of substantive due process),
overruled in other part by, Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999).

2

Under MDOC Policy Directive 05.03.140 ¶ BBB, a warden can restrict visits for a prisoner if that prisoner is found
guilty of two or more Class I misconduct charges for substance abuse.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that all Defendants except for Defendants Goulet and Vanderwagen will be
dismissed. Defendants Briki, Bird, Wilkinson, Cassidy, and Bernardo will be dismissed based on
Plaintiff’s request for voluntary dismissal. Defendants Dietz, Karel, Hall, Payton, Killough, and
Newton-Newman will be dismissed for misjoinder. Defendants Pallas, Russell, Washington, and
Hollenbeck will be dismissed for failure to state a claim. The Court will serve the complaint
against Defendants Goulet and Vanderwagen.
An Order consistent with this Opinion will be entered.

Dated: November 17, 2017

/s/ Paul L. Maloney___________________
Paul L. Maloney
United States District Judge

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