Kirkendall #854212 v. Conklin et al
OPINION; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
RAYMOND E. KIRKENDALL, II,
Case No. 1:18-cv-480
Honorable Janet T. Neff
UNKNOWN CONKLIN et al.,
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. On
May 15, 2018, the Court dismissed all defendants but Defendant Conklin and ordered service of
the complaint on Defendant Conklin. Before the Court is Plaintiff’s motion to amend the
complaint (ECF No. 10), motion for appointment of counsel (ECF No. 12), and motion to
amend/correct the case caption (ECF No. 20). For the reasons stated herein, the motion to amend
the complaint will be granted and the motions for appointment of counsel and for amendment of
the case caption will be denied. In addition, after review of the amended complaint, the Court will
dismiss Defendants Davis, Haynes, Maxim, Miranka, Jensen, Wells, Burns, Kassa, Moull, Hicks,
Perry, Sherwood, Stanbaugh, Mott, Fralick, Jex, Smith, Christiansen, and Miniard for failure to
state a claim.
Motion to Amend the Complaint
Rule 15 permits a party to amend pleading once as a matter of course within 21
days after service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). No responsive pleading has
been filed in this case. Consequently, Plaintiff is permitted to amend his complaint without
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permission from the Court. Accordingly, the Court will treat Plaintiff’s proposed amended
complaint (ECF No. 11-1) as the operative complaint in this action.
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).
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Michigan. Plaintiff sues the following
MDOC employees at ICF: Warden Willie Smith; Deputy Warden John Christiansen; Resident
Unit Manager (RUM) (unknown) Davis; Sergeants (unknown) Conklin, (unknown) Kerr,
(unknown) Greenfield, and (unknown) Moull; Corrections Officers (unknown) Maxim,
(unknown) Conner, (unknown) Martens, (unknown) Walker, (unknown) Jensen, (unknown)
Burns, (unknown) Wells, (unknown) Kassa, (unknown) Hicks, (unknown) Perry, (unknown)
Sherwood, (unknown) Stanbaugh, (unknown) Mott, (unknown) Fralick, Dewey Watkins, and
(unknown) Jex; Prisoner Counselors Heather Powell and (unknown) Haynes; Unit Chief
(unknown) Miranka; and Inspector (unknown) Miniard.
Plaintiff alleges that on January 24, 2018, Defendant Maxim came to Plaintiff’s
cell, threw Plaintiff’s mail on the floor, opened Plaintiff’s cell door, and stood facing Plaintiff with
his hands “balled up” as if he was “ready to fight.” (Am. Compl., ECF No. 11-1, PageID.84.)
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Maxim told Plaintiff to come out of his cell for a shakedown. Plaintiff refused to do so because
he was worried that his property would be damaged or that he would be falsely accused of
misconduct, as had happened to him in the past. Plaintiff asked to speak with the sergeant because
he did not feel safe. Maxim cursed at him. Plaintiff went to the back of his cell. Plaintiff again
asked to speak with a sergeant. Maxim cursed at him and stated “Okay . . . you want to play games,
let’s play.” (Id.) Maxim issued Plaintiff a misconduct for disobeying a direct order. Plaintiff
alleges that the misconduct ticket contained many false accusations about what Plaintiff said and
As a result of the misconduct, Sgt. Conklin removed Plaintiff from the “START
mental health program” and placed him in another unit. (Id., PageID.85.) Plaintiff complained
about Maxim’s conduct, but Conklin stated, “Enjoy your stay, for it’s going to be a hard one.”
(Id.) That same day, an officer refused to provide Plaintiff his lunch tray, and another officer
refused to provide a dinner tray. Plaintiff complained about this to Sgt. Kerr when she was doing
rounds, but she told him, “Well, Kirkendall, you just don’t have shit coming. It’s what happens
when you act out and staff have to work.” (Id., PageID.85-86.)
On January 25, another officer refused to provide Plaintiff his breakfast tray, telling
Plaintiff, “I don’t feed fuckboys.” (Id., PageID.86.) Plaintiff told Defendants Greenfield and
Powell about these issues, but they dismissed his concerns.
On January 26, another officer denied Plaintiff his breakfast. Plaintiff became
angry, so he threw water under his cell door and put a wet tissue through a hole over the top of the
door. According to Plaintiff, rust on the cell door made it appear that the water contained feces.
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Sgt. Conklin came to Plaintiff’s cell. Plaintiff complained that officers had been
denying him food for 24 hours. Conklin told him, “So what? . . . you don’t got anything coming
over here, so stop your bullshit.” (Id.) Plaintiff asked for the lieutenant. Conklin refused.
Plaintiff alleges that Conklin and ICF “supervisory staff” are known for using
chemical spray on prisoners without reason. (Id.) Conklin left and returned with four officers in
riot gear, telling Plaintiff to show his hands. Plaintiff complied and turned his back to the cell
door, bent forward, and put his arms out of the slot in the cell door. Conklin sprayed Plaintiff on
the back, buttocks, legs, arms, and hands, and two officers held Plaintiff at the cell door for 45
seconds while he was forced to breathe the chemical spray. Conklin then falsely charged Plaintiff
with threatening behavior.
The officers put Plaintiff in restraints, using handcuffs that were so tight that they
cut into his skin and cut off his circulation. Then they took him to a shower stall and told him to
take a shower, but Plaintiff alleges that it was a hot shower, and the hot water would have
exacerbated the burning feeling on his skin, so he refused. Officers then put Plaintiff in a restraint
chair. He contends that the restraints were so tight that they cut off the circulation in his legs.
They left him in the chair for about 2 hours. Every 15 minutes, officers checked on him, including
Defendants Greenfield, Conner, Martens and Walker. He complained that he was in severe pain
and discomfort, but they did not allow him to take a restroom break, or to be checked by a nurse,
so he defecated on himself.
On February 28, an unknown officer gave Plaintiff a supposedly kosher/vegan food
tray with a block of cheese on it. The officer said to Plaintiff, “Don’t rats love cheese?” (Id.,
PageID.89.) Defendant Watkins later walked by Plaintiff’s cell and said, “Did you enjoy your
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cheese, rat?” (Id.) Watkins’ question could be heard by other prisoners. Plaintiff asserts that
Watkins’ comment put Plaintiff at risk of harm from other prisoners.
The next day, Plaintiff’s mother spoke with Prisoner Counselor Powell on the
telephone about Plaintiff’s alleged mistreatment by other officers. Powell allegedly told Plaintiff’s
mother that Plaintiff was not telling the truth, and that Plaintiff was in “lock-up” because he was
having problems. Plaintiff asserts that Powell “invade[d] [Plaintiff’s] privacy in retaliation.” (Id.)
On April 26, when officers were moving prisoners out of their cells for maintenance
work, Sgt. Conklin allegedly stopped by Plaintiff’s cell and stated, “Well, Kirkendall, looks as if
I’ll be able to gas you once again when we have to move you so maintenance can fix your back
window.” (Id.) Plaintiff questioned him about this, and Conklin responded, “You will soon find
out and then you can go write the courts and cry to them.” (Id.)
Plaintiff contends that there has been an “extensive retaliatory campaign” against
him, because is “openly a bisexual male with long hair and sometimes effeminate voice[, which]
places him at risk of harassment and attack by officers and other prisoners.” (Id., PageID.89-90.)
He contends that defendants Greenfield, Maxim, Conner, Martens, Walker, Jensen, Wells, Burns,
Kassa, Moull, Hicks, Perry, Sherwood, Stanbaugh, Mott, Fralick, Watkins, and Jex frequently
made “sexually derogatory, demeaning, humiliating, or threatening” comments to Plaintiff, and
have threatened to “place a ‘hit’ on him by telling other prisoners that [Plaintiff is] convicted of
CSC, a rat, a homosexual, or has disrespected their gang[.]” (Id., PageID.90.) Also, Defendant
Haynes allegedly discarded Plaintiff’s “PREA grievances,” and RUM Davis “condoned” this
In addition, Plaintiff alleges that Defendants Conner, Jensen, Burns, Hicks, Perry,
Fralick, Watkins, and Jex have “retaliated” against Plaintiff by denying him showers for “weeks,
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even months, and denying L.O.P. out-of-cell yard breaks to skip over him, saying the 6 yard cages
are full, to leave him in his cell 24/7.” (Id.) They did this while making “scornful” comments
about Plaintiff’s “protected conduct.” (Id.)
Plaintiff further contends that Defendants Smith, Christiansen, Miniard, and Davis
have a “policy and custom” of “deliberate indifference to numerous reports, complaints, and
grievances by prisoners . . . of frequent officer misconduct and retaliation.” (Id.)
Plaintiff also alleges that he asked for Defendant Miranka’s help reporting and
investigating misconduct by other officers, but Miranka refused Plaintiff’s request.
Based on the foregoing, Plaintiff claims that Defendants have violated his rights
under the Eighth Amendment, retaliated against him in violation of the First Amendment, deprived
him of his right to privacy under the Fourth Amendment, and committed various torts under state
law, including: invasion of privacy, placing him in a false light, assault, battery, gross negligence,
and intentional infliction of emotional distress.
As relief, Plaintiff seeks a declaratory judgment, a permanent injunction, and
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
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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
A. Eighth Amendment
Plaintiff contends that defendants have violated his rights under the Eighth
Amendment. 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, 345-
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46 (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). Where a prisoner alleges a deprivation of some
kind, the deprivation 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).
“Not 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.
1. Chemical spray and restraints
Defendant Conklin allegedly sprayed Plaintiff with chemical spray and Defendants
Greenfield, Conner, Martens, and Walker allegedly failed to respond to Plaintiff’s complaints
while he was being held in a restraint chair. The Court finds that these allegations are sufficient
to state an Eighth Amendment claim against Defendants Conklin, Greenfield, Conner, Martens,
2. Calling Plaintiff a “rat.”
Defendant Watkins allegedly called Plaintiff a rat in front of other prisoners,
stating, “Did you enjoy your cheese, rat?” Plaintiff alleges that this comment put him at risk of
harm from other prisoners. These allegations are sufficient to state an Eighth Amendment claim
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3. Verbal harassment
Plaintiff alleges that on January 24, 2018, Defendant Maxim antagonized Plaintiff,
cursing at him, calling him names, and standing in front of Plaintiff’s cell in a stance looking like
he was ready to fight. Allegations of verbal harassment or threats by prison officials toward an
inmate do not constitute punishment within the meaning of the Eighth Amendment. Ivey, 832 F.2d
at 954-55; 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).
Accordingly, Maxim’s actions do not give rise to an Eighth Amendment claim, or any other claim,
under § 1983.
4. Food trays
Plaintiff allegedly complained to Defendant Kerr about the fact that he had not
received two food trays on January 24, and to Defendants Greenfield and Powell after he was
denied a third tray on January 25, but none of them took any action to correct the issue.
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 deprivation of a few meals for a limited time generally does not rise to the level
of a constitutional violation. See Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir. 1982) (per
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curiam) (providing a prisoner only one meal per day for fifteen days did not violate the Eighth
Amendment, because the meals provided contained sufficient nutrition to sustain normal health);
Davis v. Miron, 502 F. App’x 569, 570 (6th Cir. 2012) (denial of seven meals over six days is not
an Eighth Amendment violation); Richmond v. Settles, 450 F. App’x 448, 456 (6th Cir. 2011)
(denial of five meals over three days). Plaintiff does not allege that he faced a significant risk of
harm from being denied three food trays, or that Defendants were aware of such a risk. Thus, he
does not state an Eighth Amendment claim against Defendants Kerr, Greenfield, or Powell with
regard to the denial of food trays.
Throughout his complaint, Plaintiff alleges that Defendants retaliated against him.
For instance, Defendant Conklin allegedly told Plaintiff that his stay in Unit 2 would be a “hard
one” in “retaliation” for Plaintiff’s verbal complaints. (Am. Compl., PageID.85.) Defendant
Watkins allegedly called Plaintiff a “rat” in retaliation for Plaintiff’s complaints and grievances
against prison staff. (Id., PageID.89.) Defendant Powell allegedly lied to Plaintiff’s mother “in
retaliation.” (Id.) Plaintiff also broadly asserts that all Defendants retaliated against him “for his
exercise of constitutionally protected rights.” (Id., PageID.92.)
Retaliation based upon a prisoner’s exercise of his or her constitutional rights
violates the Constitution. See Thaddeus-X 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 allege facts to 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
show that the exercise of the protected right was a substantial or motivating factor in the
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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)).
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v. DeRobertis, 598 F. Supp. 501, 506
(C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985). “[A]lleging merely the ultimate fact of
retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory
motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’”
Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987));
see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”); Skinner v. Bolden, 89 F. App’x 579, 579-80
(6th Cir. 2004) (without more, conclusory allegations of temporal proximity are not sufficient to
show a retaliatory motive).
Plaintiff’s retaliation claims are conclusory. He fails to support them with any facts
about his protected conduct. He merely asserts that he complained about some issues on various
occasions and that he is a “well known complainer and frequent grievance filer.” (Am. Compl.,
PageID. 91.) However, Plaintiff’s reputation is not protected conduct, and there are no allegations
from which to infer that Defendants’ actions were motivated by any specific conduct by Plaintiff.
Accordingly, Plaintiff fails to state a retaliation claim.
C. Misconduct Report (Maxim)
Defendant Maxim allegedly filed a misconduct report against Plaintiff containing
false allegations. This does not state a claim. Plaintiff does not plausibly allege that Maxim issued
the report in retaliation for Plaintiff’s protected conduct. Indeed, Plaintiff admits that he did not
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obey Maxim’s order to come out of his cell. Thus, Plaintiff does not state a claim against
Defendant Maxim for filing a misconduct report charging Plaintiff with disobeying a direct order.1
D. Privacy / Fourth Amendment
Plaintiff asserts that Defendant Powell deprived him of his rights under the Fourth
The Fourth Amendment protects against unreasonable searches and seizures.
Prisoners have limited privacy rights under the Fourth Amendment. See Hudson v. Palmer, 468
U.S. 517, 526 (1984) (holding that “[t]he recognition of privacy rights for prisoners in their
individual cells simply cannot be reconciled with the concept of incarceration and the needs and
objectives of penal institutions”).
In this case, Plaintiff’s Fourth Amendment claim fails because he does not allege a
search or a seizure. He merely alleges that Defendant spoke with his mother on the telephone.
The Fourth Amendment does not prevent prison officials from speaking with a prisoner’s family.
Accordingly, Plaintiff does not state a Fourth Amendment claim against Defendant Powell.
Plaintiff alleges that Defendant Haynes discarded his PREA grievances. This does
not state a constitutional claim. The Sixth Circuit has held that there is no constitutionallyprotected due process 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.
Moreover, Defendant’s actions have not barred Plaintiff from seeking a remedy for
his grievance. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to
assert grievances typically is not violated when prison officials prohibit only ‘one of several ways
The Court will not address Plaintiff’s allegation that Defendant Conklin filed a false misconduct report because
Plaintiff states a claim against Defendant Conklin for other reasons.
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in which inmates may voice their complaints to, and seek relief, from prison officials’ while
leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415-16
(6th Cir. 2014) (citing North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6
(1977)). Indeed, Plaintiff’s ability to seek redress is underscored by his invocation of the judicial
process in this matter.
Even if Plaintiff had been improperly prevented from filing a grievance, his right
of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be
compromised by his inability to file his PREA grievances, and he therefore cannot demonstrate
the actual injury required for denial of access to the courts. See, e.g., Lewis v. Casey, 518 U.S.
343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The
exhaustion requirement only mandates exhaustion of available administrative remedies. See 42
U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance process, the process
would be rendered unavailable, and exhaustion would not be a prerequisite for initiation of a civil
rights action. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016) (reiterating that, if the prisoner
is barred from pursuing a remedy by policy or by the interference of officials, the grievance process
is not available, and exhaustion is not required); Kennedy v. Tallio, 20 F. App’x 469, 470 (6th Cir.
2001). Accordingly, Defendant Haynes is not liable under § 1983 for discarding the grievances
and Defendant Davis is not liable for condoning that conduct.
F. Supervisory Liability
To the extent Plaintiff alleges that Defendants are liable for the conduct of other
officials, or for failing to act in response to Plaintiff’s grievances, Plaintiff does not state a claim
under § 1983. 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
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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. 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.
Accordingly, Defendants are not liable for the conduct of other officers, or for
failing to respond to Plaintiff’s concerns through the grievance process. For similar reasons,
Defendant Miranka is not liable for refusing to investigate Plaintiff’s concerns.
G. State Law
Plaintiff asserts several claims under state law. 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). Accordingly, Plaintiff’s assertion that certain Defendants
violated state law does not, in itself, state a claim under § 1983.
H. Conclusory Allegations
Plaintiff makes a series of other conclusory allegations in his amended complaint.
He alleges that several defendants, including Defendants Greenfield, Maxim, Conner, Martens,
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Walker, Jensen, Wells, Burns, Kassa, Moull, Hicks, Perry, Sherwood, Stanbaugh, Mott, Fralick,
Watkins, and Jex, frequently made humiliating and derogatory remarks about Plaintiff, telling
other prisoners that Plaintiff was convicted of criminal sexual conduct, or calling him a “rat” or
“homosexual,” or telling other prisoners that Plaintiff “disrespected” their gang. (Am. Compl.,
Plaintiff also alleges that Defendants Conner, Jensen, Burns, Hicks, Perry, Fralick,
Watkins, and Jex denied him showers and yard time. (Id.)
In addition, Plaintiff alleges that Defendants Conklin, Kerr, Greenfield, Powell,
Haynes, Davis, Smith, Christiansen, Miniard, and Miranka have a “policy or custom of deliberate
indifference” to reports, complaints, and grievances by prisoners. (Id., PageID.92.)
The foregoing allegations are not adequate to state a claim. It is a basic pleading
essential that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550
U.S. at 544 (holding that, in order to state a claim, a plaintiff must make sufficient allegations to
give a defendant fair notice of the claim). Where a person is named as a defendant without an
allegation of specific conduct, the complaint 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).
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Plaintiff’s allegations, which attribute a variety of actions to large groups of
defendants, do not provide fair notice to the individual Defendants of the particular conduct giving
rise to the claims against each of them. There are no specific incidents described in the complaint
that would support allegations against such groups of individuals, and it is impossible to discern
what facts are being alleged against which Defendant. Moreover, Plaintiff’s claims concerning a
policy or custom of deliberate indifference are wholly conclusory. Accordingly, for all the reasons
mentioned, Plaintiff fails to state a claim under § 1983 against Defendants Davis, Haynes, Maxim,
Miranka, Jensen, Wells, Burns, Kassa, Moull, Hicks, Perry, Sherwood, Stanbaugh, Mott, Fralick,
Jex, Smith, Christiansen, and Miniard.
For the reasons discussed in the previous Section, Plaintiff does not state a claim
under § 1983 against Defendants Davis, Haynes, Maxim, Miranka, Jensen, Wells, Burns, Kassa,
Kerr, Moull, Hicks, Perry, Powell, Sherwood, Stanbaugh, Mott, Fralick, Jex, Smith, Christiansen,
and Miniard. To the extent Plaintiff asserts a state law claim against any of these defendants, the
Court will not exercise supplemental jurisdiction over those 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. See Landefeld v. Marion Gen. Hosp.,
994 F.2d 1178, 1182 (6th Cir. 1993); Faughender v. City of N. Olmsted, 927 F.2d 909, 917 (6th
Cir. 1991); Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998).
Accordingly, Plaintiff’s state law claims against the foregoing defendants will be dismissed
Case 1:18-cv-00480-JTN-ESC ECF No. 21 filed 09/05/18 PageID.142 Page 17 of 18
Motion for Appointment of Counsel
Plaintiff asks for appointment of counsel. Indigent parties in civil cases have no
constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d
489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). The Court
may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman,
65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional
circumstances. In determining whether to exercise its discretion, the Court should consider the
complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to
prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has
carefully considered these factors and determines that, at this stage of the case, the assistance of
counsel does not appear necessary to the proper presentation of Plaintiff’s position.
Motion to Amend Case Caption
Plaintiff asks the Court to amend the case caption to reflect that his name is
Raymond E. Kirkendall, III, and not Raymond E. Kirkendall, II. For prisoner-plaintiffs, the Court
generally uses the name that is in the state’s prison records. According to the MDOC’s Offender
Tracking Information System, Plaintiff’s name is Raymond E. Kirkendall, II. The Court has used
that name in another of Plaintiff’s cases, see Kirkendall v. Jaramillo et al., No. 1:15-cv-1210 (W.D.
Mich.), and will continue to do so here, unless and until Plaintiff’s MDOC record changes.
Plaintiff’s motion to amend the complaint will be granted. After review of the
amended complaint under the Prison Litigation Reform Act, the Court determines that Defendants
Davis, Haynes, Maxim, Miranka, Jensen, Wells, Burns, Kassa, Kerr, Moull, Hicks, Perry, Powell,
Case 1:18-cv-00480-JTN-ESC ECF No. 21 filed 09/05/18 PageID.143 Page 18 of 18
Sherwood, Stanbaugh, Mott, Fralick, Jex, Smith, Christiansen, and Miniard will be dismissed for
failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
However, the Court will allow service of the amended complaint against Defendants Conklin,
Greenfield, Conner, Martens, Walker, and Watkins. The Court will enter an appropriate order for
service of the amended complaint on the remaining Defendants.
Plaintiff’s motion for
appointment of counsel and motion to amend the case caption will be denied.
An Order consistent with this Opinion will be entered.
September 5, 2018
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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