Crump #236528 v. Armstrong et al

Filing 4

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
NORTHERN DIVISION

HORACE W. CRUMP,
Plaintiff,

Case No. 2:11-cv-45

v.

Honorable R. Allan Edgar

JIM ARMSTRONG,
Defendants.
____________________________________/
OPINION
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, and Plaintiff has paid the
initial partial filing fee. 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 a claim.

Discussion
I.

Factual allegations

Plaintiff Horace W. Crump #236528, a prisoner at the G. Robert Cotton Correctional
Facility, filed this 42 U.S.C. § 1983 action against Defendants Step III Grievance Respondent Jim
Armstrong, MDOC Director Patricia Caruso, MDOC Administrator Richard Stapleton, Grievance
Coordinator S. Farley, Step I Grievance Respondent C. Hessel, Step I Grievance Reviewer Mitchell
Perry, Step I Grievance Reviewer Assistant Deputy Warden C. Daley, Step I Grievance Reviewer
Assistant Deputy Warden Scott Sprader, Step II Grievance Respondent Warden Barry Davis, Step
II Grievance Respondent Warden Jeri-Ann Sherry, and the Michigan Department of Corrections
(MDOC).
In his complaint, Plaintiff alleges that on March 4, 2008, he filed a grievance
regarding his condition as a member of the “Shi’a” religion in the MDOC. The step I and II
respondents found that this was a non-grievable issue, but advised Plaintiff that he could petition for
a separate religious service, which he did. Plaintiff sent his step III appeal to Defendant Caruso, but
it was never logged into the system.
Plaintiff alleges that on May 26, 2008, Plaintiff wrote a grievance regarding his
transfer from the Kinross Temporary Facility (KTF) / Chippewa Correctional Facility (URF) to the
Newberry Correctional Facility (NCF) without his property. Defendant Farley called Plaintiff to his
office and told him that NCF had nothing to do with the failure to transfer his property and advised
him to send his grievance to KTF or URF. Defendant Farley asked Plaintiff who he had “pissed off”
and refused to file his grievance. After Plaintiff threatened to grieve him, Defendant Farley told him
that he would file the grievance if he split it into three grievances.
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On June 2, 2008, Plaintiff submitted three grievances typed by prisoner McConnell
Adams regarding the lack of clothing, medication, and hygiene items. Defendant Farley again
refused to file Plaintiff’s grievances. On June 3, 2008, Plaintiff sent a grievance to KTF, but never
received a response. On June 20, 2008, prisoner Adams typed Plaintiff a letter to send to Defendant
Perry, which went unanswered. During this time, NCF Resident Unit Manager Lynn Olson made
numerous calls to KTF / URF regarding Plaintiff’s missing property. On August 13, 2008, Plaintiff
filed a grievance detailing all of his complaints, which was rejected by Defendants Hessel and Daley
for being untimely despite the fact that Plaintiff explained that he had been transferred and had
previously attempted to file the grievance. Defendants Hessel and Daley also ordered Plaintiff to
file a grievance with NCF, despite the fact that NCF never had control of his property. Defendant
Hessel never responded to Plaintiff’s request for a step II appeal form.
On October 12, 2008, Plaintiff filed a fifth grievance against officials at NCF
regarding his transfer, but Defendants Farley, Sprader and Davis rejected Plaintiff’s grievance
because it contained multiple issues and was untimely. The rejection was upheld at step III by
Defendants Caruso and Armstrong. On October 13, 2008, Plaintiff filed a third grievance against
officials at KTF / URF regarding his property and other issues surrounding his transfer. Defendants
Hessel, Daley, Sherry, Caruso and Armstrong all held that the grievance was properly rejected as
untimely. On November 12, 2008, Plaintiff received a response from Defendant Perry, indicating
that Plaintiff’s frustration was understandable.
On November 24, 2008, Plaintiff sent a staff corruption grievance to Defendant
Caruso regarding the repeated rejection of his grievances by Defendants Farley and Davis. Plaintiff’s
attempt to file the grievance directly at step III was rejected and the grievance was sent to Defendant
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Farley for processing at step I. Defendant Sprader interviewed Plaintiff and concluded that
Defendant Farley had acted professionally. Plaintiff claims that he was assaulted on January 4, 2009.
Plaintiff received a Notice of Intent to classify to segregation and requested an investigation and
hearing. On January 8, 2009, Plaintiff was transferred to segregation without a hearing or
investigation. Plaintiff filed a grievance regarding the lack of hearing on January 13, 2009, to no
avail.
Plaintiff claims that Defendants’ failure to properly handle his grievances deprived
him of his ability to get relief from a variety of federal and state law violations by prison officials.
Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief.
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 Atlantic
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
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(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).
Plaintiff may not maintain a § 1983 action against the Michigan Department of
Corrections. Regardless of the form of relief requested, the states and their departments are immune
under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity
or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782
(1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly
abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979),
and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,
803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit has
specifically held that the MDOC is absolutely immune from suit under the Eleventh Amendment.
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See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. Mar. 12, 2010); Turnboe v.
Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of
Michigan (acting through the Michigan Department of Corrections) is not a “person” who may be
sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing
Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)). Therefore, the Court dismisses the
Michigan Department of Corrections.
Plaintiff claims that Defendants’ handling of his grievances denied him relief from
the loss of his property, an appropriate religious service, and to relief from being placed in
segregation without a hearing. However, Plaintiff fails to allege that Defendants were actually
responsible for any of the underlying misconduct, but merely asserts that they failed to remedy his
situation by responding appropriately to his grievances. Recently, in the context of considering
retaliation claims, the Sixth Circuit has stated that there is a First Amendment right to file a
institutional grievance.

Depending upon whether the retaliation arose from an inmate’s

constitutionally protected conduct, either a First Amendment or due process standard may apply to
a retaliation claim. Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000). If the inmate is engaged
in constitutionally protected conduct, the First Amendment standard enunciated in Thaddeus-X v.
Blatter, 175 F.3d 378 (6th Cir.1999) (en banc) applies. Thaddeus-X requires the prisoner 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. Thaddeus-X, 175 F.3d at 394. Under the due
process standard, where the prisoner was not engaged in constitutionally protected conduct, the
prisoner must show “an egregious abuse of governmental power” or behavior that “shocks the
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conscience”. Herron, 203 F.3d at 414 (citing Cale v. Johnson, 861 F.2d 943, 950-51 (6th Cir.
1988)).
In two cases involving a claim of retaliation for filing institutional grievances, the
Sixth Circuit applied the Thaddeus-X standard, thus indicating that an inmate’s filing of institutional
grievances is constitutionally protected conduct. See Shehee v. Luttrell, 199 F.3d 295, 300-301 (6th
Cir. 1999); Scott v. Kilchermann, No. 99-1711, 2000 WL 1434456, at *2 (6th Cir. Sept. 18, 2000).
In Shehee, 199 F.3d at 300-301, the Sixth Circuit applied the Thaddeus-X standard and expressly
stated that the filing of institutional grievances is constitutionally-protected conduct for which a
prisoner cannot be retaliated against. Similarly, in the unpublished decision of Scott, 2000 WL
1434456, at *2, the Sixth Circuit indicated that an inmate has a First Amendment right to file a
grievance against prison officials and not to be retaliated against under the Thaddeus-X standard as
long as the grievance is not frivolous. Accord Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir.1996) (in
the context of a retaliation claim, an involuntarily committed mental patient, who is “an individual
in the custody of the state,” has a constitutional right to petition to use the hospital grievance
procedure); see also Herron, 203 F.3d at 415 (in the context of a retaliation claim, inmate had a First
Amendment right to file a nonfrivolous “grievance,” i.e., a lawsuit, against prisoner officials).
However, Plaintiff has not alleged that Defendants’ actions were taken in a retaliatory
manner. At best, his allegations support an inference that Defendants mistakenly denied and / or
rejected his grievances, not that they acted against him with a retaliatory intent. See Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc); see also Herron v. Harrison, 203 F.3d 410, 415
(6th Cir. 2000) (indicating that the Thaddeus-X standard applies to claims of retaliation against an
inmate for filing lawsuits). In addition, the Sixth Circuit has never held that an inmate has an
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independent constitutional right to file an institutional grievance, apart from the First Amendment
right not to be retaliated against for filing one.
In addition, 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 an institutional grievances. See, e.g., Lewis v. Casey,
518 U.S. 343 (1996); 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. In light
of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim.
Moreover, 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.
845 (1984).
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
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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 Armstrong, Caruso,
Stapleton, Farley, Hessel, Perry, Daley, Sprader, Davis, and Sherry were personally involved in the
activity which forms the basis of his claim. The only roles that Defendants Armstrong, Caruso,
Stapleton, Farley, Hessel, Perry, Daley, Sprader, Davis, and Sherry had in this action involve the
denial of administrative grievances or the failure to act. Defendants Armstrong, Caruso, Stapleton,
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Farley, Hessel, Perry, Daley, Sprader, Davis, and Sherry 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 Armstrong, Caruso,
Stapleton, Farley, Hessel, Perry, Daley, Sprader, Davis, and Sherry are properly dismissed for lack
of personal involvement.
Conclusion
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.

Dated:

5/16/2011

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge