Kirkendall #854212 v. Conklin et al
OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
RAYMOND E. KIRKENDALL,
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.
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 for failure to state a claim against
Defendants Smith, Clement, Christiansen, Miniard, and Maranka. The Court will serve the
complaint against Defendant Conklin.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Michigan, where the events giving rise
to his complaint occurred. Plaintiff sues the following MDOC employees at ICF: Sergeant
(unknown) Conklin, Warden W. Smith, P. Clement, J. Christiansen, G. Miniard, and D. Maranka.
Plaintiff alleges that Defendant Conklin sprayed Plaintiff with chemical agent “to
excess” while Plaintiff’s hands were “out [of] the slot to cuff up[.]” (Compl., ECF No. 1,
PageID.3.) Plaintiff also alleges that his mail has been thrown away by “staff” without his
knowledge. (Id.) Plaintiff contends that his right to due process has been violated.
As relief, Plaintiff seeks 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
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. Defendants Clement, Christiansen, Miniard, and Maranka
Plaintiff names several individuals as defendants, but does not make any specific
allegations against them, including Defendants Clement, Christiansen, Miniard, and Maranka. 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);
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”). Because
Plaintiff’s claims fall far short of the minimal pleading standards under Fed. R. Civ. P. 8 (requiring
“a short and plain statement of the claim showing that the pleader is entitled to relief”), his
complaint must be dismissed against Defendants Clement, Christiansen, Miniard, and Maranka.
B. Defendant Smith
Defendant Smith is named as a defendant because he is “legally responsible for the
operation of [ICF] and for the welfare of all the inmates in that prison.” (Compl., PageID.3.)
Defendant Smith’s position does not make him liable for all the actions of other officials at ICF.
A government official may not be held liable for the unconstitutional conduct of other officials
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. 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 Smith engaged in any active unconstitutional behavior. Accordingly,
Plaintiff fails to state a claim against Defendant Smith, and he will be dismissed as a defendant.
C. Defendant Conklin
Upon review, the Court concludes that Plaintiff states an Eighth Amendment claim
against Defendant Conklin. Thus, the Court will order service of the complaint on Defendant
Motion to Appoint Attorney
Plaintiff has filed a motion asking the Court to appoint counsel to represent him.
(ECF No. 3.) 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. Accordingly,
Plaintiff’s motion will be denied.
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Smith, Clement, Christiansen, Miniard, and Maranka 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). The Court will serve the complaint against Conklin. The Court will deny Plaintiff’s
request for appointment of counsel.
An Order consistent with this Opinion will be entered.
May 15, 2018
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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