Herndon #136007 v. Davids et al
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CLARENCE WATSON HERNDON,
Case No. 1:21-cv-458
Honorable Robert J. Jonker
JOHN DAVIDS 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.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Charles Egeler Reception & Guidance Center (RGC) in Jackson, Jackson County,
Michigan. The events about which he complains, however, occurred at the Ionia Correctional
Facility (ICF) in Ionia, Ionia County, Michigan. Plaintiff sues ICF Warden John Davids, and ICF
Grievance Coordinators Adam Yuhas and E. Simon.
Plaintiff alleges that from June 6, 2018, until October 21, 2020, Defendant Davids
placed him multiple times on modified access to the grievance system,1 and Defendants Yuhas and
Simon enforced the policy. At least some of Plaintiff’s attempts to file grievances while on
modified access were denied by Defendants Yuhas and Simon. Plaintiff also attempted to file or
filed grievances against each of the Defendants for denying his efforts to file grievances.
Plaintiff seeks declaratory relief, injunctive relief, compensatory damages, and
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
Under MDOC policy, “[a] prisoner or parolee who files an excessive number of grievances (three within a 30
calendar day span) that are rejected or the prisoner is found guilty of misconduct for filing an unfounded
grievance . . . may have access to the grievance process limited by the Warden . . . for an initial period of not more
than 90 calendar days.” MDOC Policy Directive 03.02.130 ¶¶ JJ–NN (eff. Mar. 18, 2019).
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
Plaintiff contends that Defendants violated the First Amendment by placing him on
modified access, failing to act on his grievances, and retaliating against him.
Modified access and failing to act
Plaintiff’s placement on modified access and Defendant’s failure to act on his
grievances did not violate Plaintiff’s rights under the First Amendment.
constitutional right to assert grievances typically is not violated when prison officials prohibit only
‘one of several ways 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 N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6
(1977)). Plaintiff had other means of exercising his right to petition government for redress of
grievances. Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of
the judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982).
Further, Plaintiff was not wholly denied access to the grievance process. Placement
on modified access does not prohibit an inmate from utilizing the grievance process. See Walker,
128 F. App’x 441, 445–47 (6th Cir. 2005); Corsetti v. McGinnis, 24 F. App’x 238, 241 (6th
Cir. 2001). The inmate may still request a grievance form and, if the form is provided, submit
grievances to the grievance coordinator, who reviews the grievance to determine whether it
complies with institutional rules regarding the filing of grievances.
See MDOC Policy
Directive 03.02.130 ¶ MM. Moreover, if a prisoner submits a grievance obtained from a source
other than the Step-I grievance coordinator, the grievance coordinator may reject the grievance, in
accordance with ¶ J of the policy. Id. at ¶¶ MM, J(3). As with any grievance rejection under ¶ J,
the prisoner may appeal the rejection to the next step of the grievance process. Id. ¶ I. There is
nothing constitutionally improper about this review process for a prisoner who has demonstrated
an inability to properly utilize the grievance process in the past.
Finally, to the extent that Plaintiff complains about Defendants’ failure to provide
him a satisfactory response or to act on his grievances, the First Amendment “right to petition
government does not guarantee a response to the petition or the right to compel government
officials to act on or adopt a citizen’s views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
Consequently, Plaintiff fails to state a First Amendment claim for his placement on
modified access and Defendants’ failure to act on his grievances.
Plaintiff’s contention that Defendants retaliated against him is supported only by
allegations that Plaintiff filed grievances and Defendants placed him on modified access and either
rejected or denied his grievances.
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 establish three elements:
(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)).
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). “[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 Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints
screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no
concrete and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations
omitted); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on
the defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A
screening) (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998)). Plaintiff merely alleges the
ultimate fact of retaliation in this action. He has not presented any facts whatsoever to support his
conclusion that Defendants retaliated against him. Consequently, he fails to state a retaliation
claim against Defendants Davids, Yuhas, and Simon. See Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
Therefore, Plaintiff fails to state a First Amendment claim against Defendants
Davids, Yuhas, and Simon. Accordingly, the Court will dismiss Plaintiff’s First Amendment
claims against them.
Plaintiff also contends that Defendants violated the Eighth Amendment by failing
to investigate the substance of his grievances. 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 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 Defendants Davids, Yuhas,
and Simon engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim
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, under 28
U.S.C. §§ 1915(e)(2) and 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 the Court concludes that Plaintiff’s claims are properly dismissed, the Court also concludes
that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States,
369 U.S. 438, 445 (1962). Accordingly, the Court certifies that an appeal would not be taken in
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.
October 7, 2021
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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