Collier #691730 v. Andres et al

Filing 4

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JAMMIE COLLIER,
Plaintiff,
v.

Case No. 1:18-cv-80
Honorable Janet T. Neff

NAOMI ANDRES et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.1
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 Defendants Andres and Smilenski
for failure to state a claim.

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Plaintiff also cites Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), as a
basis for his complaint, but that case recognizes actions against federal agents or employees acting under color of
federal law; it does not apply to actions against state officials. See id. at 397. Plaintiff does not allege that Defendants
are federal officials.

Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Saginaw County Correctional Facility (SRF), though the events about which he
complains occurred at the Bellamy Creek Correctional Facility (IBC) in Ionia, Michigan. Plaintiff
sues Aramark Employee Supervisor Naomi Andres and MDOC Classification Director A.
Smilenski.
Plaintiff alleges that Defendant Andres filed a false work evaluation about Plaintiff
on January 19, 2015. In addition, Plaintiff was accused of theft and he received a misconduct
ticket. On February 9, Plaintiff was found not guilty of the misconduct. When Andres learned
that Plaintiff would be returning to his work detail, Andres filed another false work evaluation
about Plaintiff that same day. Defendant Smilenski removed Plaintiff from his work assignment
on February 24, 2015, because of Plaintiff’s second work evaluation.
Plaintiff apparently contends that Defendants retaliated against him. He also claims
that Smilenski did not follow MDOC policy. Plaintiff does not specify the relief that he seeks,
though he sues Smilenski in his official capacity only. Plaintiff sues Andres in her official and
personal capacities.
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

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(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).
A. Retaliation
Plaintiff contends that Defendants retaliated against him. Retaliation based upon
a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X

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v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). 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 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 v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)).
Plaintiff does not state a retaliation claim because he does not allege that he engaged
in any protected conduct prior to Defendants’ actions. He contends that Andres was “adverse”
toward him and falsified work evaluations, but that does not necessarily mean that Andres was
motivated by Plaintiff’s protected conduct. Absent protected conduct, Plaintiff does not state a
retaliation claim.
B. Work Assignment
The fact that Defendants took action to remove Plaintiff from his work assignment
also does not state a claim. Plaintiff does not have a constitutional right to, or protected interest
in, prison employment. See 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);
Argue v. Hofmeyer, 80 F. App’x 427, 429 (6th Cir. 2003) (prisoners have no constitutional right
to rehabilitation, education or jobs); 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”).

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C. MDOC Policy
Finally, the fact that Smilenski allegedly violated MDOC policy when terminating
Plaintiff does not state a claim under § 1983. An 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 580-81.
Moreover, to the extent that Plaintiff’s complaint presents claims under state law,
this Court declines to exercise jurisdiction over the state law claims. “Where a district court has
exercised jurisdiction over a state law claim solely by virtue of supplemental jurisdiction and the
federal claims are dismissed prior to trial, the state law claims should be dismissed without
reaching their merits.” Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3,
1998) (citing Faughender v. City of N. Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991)); see also
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s claim against Defendants Andres and Smilenski under federal
law will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b),

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and 42 U.S.C. § 1997e(c). To the extent Plaintiff states a claim under state law, the Court declines
to exercise jurisdiction over that claim.
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:

February 6, 2018

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

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