Morris #205193 v. Olson et al
OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
LAVARON MORRIS #205193,
Case No. 2:11-cv-39
Honorable R. Allan Edgar
KATHY OLSON, et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321 (1996), 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, Plaintiff’s action will be dismissed for failure to state
Plaintiff Lavaron Morris, an inmate at the Chippewa Correctional Facility (URF),
filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against Defendants Assistant
Deputy Warden Kathy Olson, Librarian Unknown Herbig, and Warden Jeffrey Woods, all of whom
were employed at the Kinross Correctional Facility (KCF) during the pertinent time period. Plaintiff
also names MDOC Director Patricia L. Caruso as a Defendant in this case.
In his complaint, Plaintiff alleges that while he was confined at KCF, Defendant
Olson made him eligible for a routine transfer in retaliation for filing a kite regarding Defendant
Herbig. In response to this kite, Defendant Olson stated that Defendant Herbig had given Plaintiff
“sound advice” on July 30, 2008. Plaintiff was transferred to URF on September 17, 2009. Plaintiff
alleges that Defendant Olson’s conduct had to have been motivated by a desire to retaliate against
him because there was no other reason for him to be transferred. Plaintiff’s factual allegations are
somewhat confused with regard to the actual date of the alleged complaint or kite that he sent to
Defendant Olson regarding Defendant Herbig, as well as to the date of Defendant Olson’s response.
In addition, Plaintiff fails to specify the content of the complaint or kite. Plaintiff seeks injunctive
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, 45-46 (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, 129 S. Ct. 1937,
1949 (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, 129 S. Ct. at
1949. 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, 129 S. Ct. at 1949
(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, 129 S. Ct. at 1950 (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); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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).
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 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. Thaddeus-X, 175 F.3d at 394. 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)).
Filing a grievance or complaint is constitutionally protected conduct under the First
Amendment. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Noble v. Schmitt, 87
F.3d 157, 162 (6th Cir. 1996). Plaintiff, however, cannot show that his transfer to URF was an
adverse action taken against him from filing a complaint against Defendant Herbig. “Since prisoners
are expected to endure more than the average citizen, and since transfers are common among prisons,
ordinarily a transfer would not deter a prisoner of ordinary firmness from continuing to engage in
protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005). See, e.g., Smith v.
Yarrow, 78 F. App’x. 529, 543 (6th Cir. 2003) (“transfer from one prison to another prison cannot
rise to the level of an adverse action because it would not deter a person of ordinary firmness from
the exercise of his First Amendment rights”) (internal quotation marks omitted). If, however, a
foreseeable consequence of a transfer would be to substantially inhibit a prisoner’s ability to access
the courts, then such a transfer could be considered an “adverse action” that would deter a person
of ordinary firmness from continuing to engage in the protected conduct. See Siggers-El, 412 F.3d
at 702 (holding that a transfer was an “adverse action,” where the transfer resulted in plaintiff losing
a high paying job that paid for his lawyer fees and moved him further from the attorney); Johnson
v. Beardslee, No. 1:06-CV-374, 2007 WL 2302378, at *5 (W.D. Mich. Aug. 8, 2007). Similarly,
the Sixth Circuit has held that a transfer to segregation or to an area of the prison used to house
mentally disturbed inmates could be sufficiently adverse. See Thaddeus-X, 175 F.3d at 398; see also
Hill v. Lappin, 630 F.3d 468 (6th Cir. Dec. 2010).
Plaintiff alleges that he was made eligible for a “routine” transfer, from one general
population to another. Transfers to the general population of another prison are not typically an
adverse action. See Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003) (collecting cases); see
also Hill, 630 F.3d at 473; Thaddeus-X, 175 F.3d at 398. Plaintiff does not allege that he was
transferred to a lock-down unit at the new facility or that his access to the courts was compromised
as a result of the transfer.
Moreover, although temporal proximity may be “‘significant enough to constitute
indirect evidence of a causal connection so as to create an inference of retaliatory motive,’”
Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d
408, 422 (6th Cir. 2004)), “[c]onclusory allegations of temporal proximity are not sufficient to show
a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004). The court notes that
Muhammad does not stand for the proposition that temporal proximity alone is sufficient to create
an issue of fact as to retaliatory motive.
In Muhammad the Sixth Circuit did not resolve the issue, but merely
observed that “temporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.’ “ Id. at 418 (quoting DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if
temporal proximity may in some cases create an issue of fact as to
retaliatory motive, it would only be sufficient if the evidence was
“significant enough.” Plaintiff’s conclusory and ambiguous evidence
is not “significant enough” to create an issue of fact as to retaliatory
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010).
As noted above, Plaintiff’s allegations are conclusory and somewhat incoherent.
Because Plaintiff’s complaint asserts no more than temporal proximity, and because his transfer does
not appear to constitute adverse conduct, his retaliation claim lacks merit.
In addition, liability under Section 1983 must be based on more than merely the right
to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978). Thus, Section 1983 liability cannot be
premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S.
at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally
participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly
unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989),
cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459
U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S.
Supervisory officials can be held liable for the acts of their subordinates only if
plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and
that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891
F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending employee is not actionable absent a showing
that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some
other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim
requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a
time when the conduct could be prevented, or that such conduct was otherwise foreseeable or
predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must
show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient
grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932
F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory
official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D.
Mich. 1987) (Hillman, C.J.), aff’d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims
cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp.
335, 337 (W.D. Mich. 1989), aff’d 915 F.2d 1574 (6th Cir. 1990).
Plaintiff has not alleged facts establishing that Defendants Woods and Caruso were
personally involved in the activity which forms the basis of his claim. The only roles that
Defendants Woods and Caruso had in this action involve the denial of administrative grievances or
the failure to act. Defendants Woods and Caruso cannot be liable for such conduct under § 1983.
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000).
Accordingly, the Court concludes that Plaintiff’s claims against Defendants Woods and Caruso are
properly dismissed for lack of personal involvement.
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 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 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
$455.00 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 $455.00 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.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Court
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