Clark #222915 v. Lindemuth, 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
Case No. 2:11-cv-336
Honorable R. Allan Edgar
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 without payment of an 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.
Plaintiff Aaron Clark, an inmate currently confined at the Alger Maximum
Correctional Facility (LMF), filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983
against 147 employees of the Michigan Department of Corrections (MDOC). Plaintiff’s complaint
is written in an incomprehensible stream-of-consciousness fashion, with a paucity of factual
development. Plaintiff recites a litany of grievances against prison employees, but fails to flesh out
any of his claims. Instead, Plaintiff appears to be asserting that every prison employee who came
into contact with him from the time he arrived at LMF on August 6, 2009, until the time he filed this
complaint, have violated his rights in one form or another. Plaintiff seeks to be transferred to the
Oaks Correctional Facility and seeks damages in the amount of $31,000.00 from each of the named
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).
Plaintiff appears to be asserting that Defendants failed to protect him in violation of
the Eighth Amendment. Plaintiff claims that when he arrived at LMF he refused to go into the
general population because of the fact that he had been threatened by many prisoners in the past and
had enemies in the Moors and Melanics, as well as other gangs. Thereafter Plaintiff was placed in
segregation. Plaintiff also claims that numerous prison officials have labeled him a rat.
Inmates have a constitutionally protected right to personal safety grounded in the
Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Thus, prison staff are obliged
“to take reasonable measures to guarantee the safety of the inmates” in their care. Hudson v. Palmer,
468 U.S. 517, 526-27 (1984). To establish a violation of this right, Plaintiff must show that
Defendant was deliberately indifferent to the Plaintiff’s risk of injury. Walker v. Norris, 917 F.2d
1449, 1453 (6th Cir.1990); McGhee v. Foltz, 852 F.2d 876, 880-881 (6th Cir.1988). While a prisoner
does not need to prove that he has been the victim of an actual attack to bring a personal safety claim,
he must at least establish that he reasonably fears such an attack. Thompson v. County of Medina,
Ohio, 29 F.3d 238, 242-43 (6th Cir.1994) (holding that plaintiff has the minimal burden of “showing
a sufficient inferential connection” between the alleged violation and inmate violence to “justify a
reasonable fear for personal safety.”)
Plaintiff fails to allege any specific facts showing that he was ever in any danger of
being assaulted or that Defendants ignored a specific threat to Plaintiff’s safety. None of the
assertions in Plaintiff’s complaint show that he was under any imminent threat of attack by prisoners
at LMF. The court concludes that Plaintiff’s allegations are insufficient to show that Plaintiff’s fear
of an attack was reasonable. Therefore, Plaintiff’s failure to protect claims are properly dismissed.
Plaintiff also claims that an Officer Briggs pinched his arm while moving him from
his cell in an attempt to make Plaintiff react so that officers would have an excuse to “take him
down.” Plaintiff refused to react and yelled that he was being pinched. Plaintiff’s allegations
regarding this alleged use of force are insufficient to state a claim because the alleged deprivation
is not sufficiently grave. Only those deprivations denying “the minimal civilized measure of life’s
necessities” are sufficiently grave for an Eighth Amendment claim. Hudson v. McMillian, 503 U.S.
1, 8-9 (1992). A de minimis use of physical force is beyond constitutional recognition, provided that
the use of force is not of a sort “repugnant to mankind.” Id. at 9-10 (quoting Whitley v. Albers, 475
U.S. 312, 327 (1986)); see Norman v. Taylor, 25 F.3d 1259, 1264 (4th Cir. 1994), cert. denied 513
U.S. 1114 (1995) (“absent the most extraordinary circumstances, a plaintiff cannot prevail on an
Eighth Amendment excessive force claim if his injury is de minimis).
In Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010), the Supreme Court emphasized
that Hudson v. McMillian, 503 U.S. 1, 4 (1992), held that the fact that an inmate’s injuries were “de
minimis” is not itself a bar to an Eighth Amendment claim. The seriousness of the injury is not a
threshold inquiry. Wilkins, 130 S. Ct. at 1178 (quoting Hudson, 503 U.S. at 7). “The ‘core judicial
inquiry,’ we held, was not whether a certain quantum of injury was sustained, but rather ‘whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.’” Id. (quoting Hudson, 503 U.S. at 7). “‘When prison officials
maliciously and sadistically use force to cause harm,” the Court recognized, ‘contemporary standards
of decency always are violated . . . whether or not significant injury is evident.’” Id. Nevertheless,
the absence of serious injury is relevant as a factor in determining whether the use of force plausibly
could have been thought necessary to the situation. Id. The court notes that Plaintiff alleges that he
suffered a red mark on his arm as a result of Officer Briggs’ conduct. Such a transitory injury is not
the sort that requires medical treatment or that rises to the level of a “serious injury.” Moreover, the
mere act of “pinching” Plaintiff’s arm during a prison move does not rise to the level of an Eighth
Amendment deprivation. Nor do Plaintiff’s claims that he was denied medical treatment for the red
mark on his arm rise to the level of an Eighth Amendment violation. Estelle v. Gamble, 429 U.S.
102, 104-05 (1976); Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
Plaintiff also claims that he was subjected to a false misconduct conviction as a result
of his refusal to be placed in the general population. A prisoner’s ability to challenge a prison
misconduct conviction depends on whether the convictions implicated any liberty interest. In the
seminal case in this area, Wolff v. McDonnell, 418 U.S. 539 (1974), the Court prescribed certain
minimal procedural safeguards that prison officials must follow before depriving a prisoner of goodtime credits on account of alleged misbehavior. The Wolff Court did not create a free-floating right
to process that attaches to all prison disciplinary proceedings; rather the right to process arises only
when the prisoner faces a loss of liberty, in the form of a longer prison sentence caused by forfeiture
of good-time credits:
It is true that the Constitution itself does not guarantee good-time
credit for satisfactory behavior while in prison. But here the State
itself has not only provided a statutory right to good time but also
specifies that it is to be forfeited only for serious misbehavior.
Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for
good behavior, and it is true that the Due Process Clause does not
require a hearing “in every conceivable case of government
impairment of private interest.” But the State having created the right
to good time and itself recognizing that its deprivation is a sanction
authorized for major misconduct, the prisoner’s interest has real
substance and is sufficiently embraced within Fourteenth Amendment
“liberty” to entitle him to those minimum procedures appropriate
under the circumstances and required by the Due Process Clause to
insure that the state-created right is not arbitrarily abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits1 for prisoners convicted for crimes
occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. MICH. COMP. LAWS § 800.33(5).
that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.
Rather, it merely affects parole eligibility, which remains discretionary with the parole board. 481
F.3d at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court
held that a misconduct citation in the Michigan prison system does not affect a prisoner’s
constitutionally protected liberty interests, because it does not necessarily affect the length of
confinement. 355 F. App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196,
at * 4 (E.D. Mich. Nov. 24, 2010) (Report & Recommendation) (holding that “plaintiff’s disciplinary
hearing and major misconduct sanction does not implicate the Fourteenth Amendment Due Process
Clause”), adopted as judgment of court, 2011 WL 5491196 (Jan. 4, 2011). In the absence of a
demonstrated liberty interest, Plaintiff has no due-process claim based on the loss of disciplinary
credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff has not
identified any significant deprivation arising from his misconduct conviction. Plaintiff contends that
he was reclassified to administrative segregation following the misconduct conviction. To determine
whether segregation of an inmate from the general prison population involves the deprivation of a
liberty interest protected by the due process clause, the Court must determine if the segregation
imposes an “atypical and significant” hardship on the inmate “in relation to the ordinary incidents
of prison life.” Jones v. Baker, 155 F.3d 810, 811 (6th Cir. 1998) (quoting Sandin v. Conner, 515
U.S. 472, 483 (1995)). Under various circumstances, the Sixth Circuit has repeatedly found that
confinement to administrative segregation does not present an “atypical and significant” hardship
implicating a protected liberty interest. See Jones, 155 F.3d at 812-23 (two years of segregation
while inmate was investigated for murder of prison guard in riot); Rimmer-Bey v. Brown, 62 F.3d
789, 790-91 (6th Cir. 1995) (inmate serving life sentence was placed in segregation after serving
thirty days of detention for misconduct conviction of conspiracy to commit assault and battery);
Mackey v. Dyke, 111 F.3d 460 (6th Cir.1997) (one year of segregation after inmate was found guilty
of possession of illegal contraband and assault and where reclassification was delayed due to prison
crowding). Plaintiff has failed to make any allegations which show that his segregation is “atypical
and significant.” Unless a prison misconduct conviction results in an extension of the duration of
a prisoner’s sentence or some other atypical hardship, a due-process claim fails. Ingram v. Jewell,
94 F. App’x 271, 273 (6th Cir. 2004).
Plaintiff claims that Defendants retaliated against him for his use of the grievance
system by failing to pick up kites for law books and other items, screening him at a higher security
level than he should have been, and harassing him in various ways. 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 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 Defendants’ alleged misconduct was an
adverse action taken against him for filing grievances. 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)). However, “[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).
Moreover, 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). In this case, as in
Brandon v. Bergh, Plaintiff’s allegations of retaliatory motive are entirely conclusory. Therefore,
Plaintiff’s retaliation claims are properly dismissed.
Plaintiff claims that prison officials at LMF improperly seized property from his cell,
including copies of old grievances and legal materials. In Bounds v. Smith, 430 U.S. 817 (1977), the
Supreme Court recognized a prisoner’s fundamental right of access to the courts. While the right
of access to the courts does not allow a State to prevent an inmate from bringing a grievance to court,
it also does not require the State to enable a prisoner to discover grievances or litigate effectively.
Lewis v. Casey, 518 U.S. 343 (1996). Thus, Bounds did not create an abstract, free-standing right
to a law library, litigation tools, or legal assistance. Id. at 351 (1996). Further, the right may be
limited by legitimate penological goals, such as maintaining security and preventing fire or sanitation
hazards. See Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir. March 26, 1992); Hadix v.
Johnson, No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988); Wagner v. Rees, No. 85-5637,
1985 WL 14025 (6th Cir. Nov. 8, 1985).
To state a claim, an inmate must show that any shortcomings in the library, litigation
tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351;
Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate
must make a specific claim that he was adversely affected or that the litigation was prejudiced.
Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Particularly, an
inmate cannot show injury when he still has access to his legal materials by request, Kensu, 87 F.3d
at 175, when he fails to state how he is unable to replicate the confiscated documents, Vandiver,
1994 WL 677685, at *1, or when he could have received the material by complying with the limits
on property, e.g., where he had the opportunity to select the items that he wanted to keep in his cell,
or when he had an opportunity to purchase a new footlocker that could hold the property. Carlton
v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993). Because Plaintiff
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cannot show actual injury or that he has suffered any litigation-related detriment, Plaintiff fails to
state a claim for denial of access to the courts.
Nor does the alleged seizure of property from Plaintiff’s cell violate the Due Process
Clause. Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S.
327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized act” of
a state employee has no federal due process claim unless the state fails to afford an adequate postdeprivation remedy. If an adequate post-deprivation remedy exists, the deprivation, although real,
is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent
and intentional deprivation of property, as long as the deprivation was not done pursuant to an
established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because
Plaintiff’s claim is premised upon allegedly unauthorized negligent acts of a state official, he must
plead and prove the inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57
F.3d 476, 479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled
Sixth Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983
due-process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Nov. 15, 2004). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; Policy
Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims
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asserting tort or contract claims “against the state and any of its departments, commissions, boards,
institutions, arms, or agencies.”
MICH. COMP. LAWS § 600.6419(1)(a). The Sixth Circuit
specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court action
would not afford him complete relief for the deprivation, either negligent or intentional, of his
While a complaint need not contain detailed factual allegations, a plaintiff’s
allegations must include more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). 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. The court need not accept
“threadbare recitals of the elements of a cause of action, supported by mere conclusory statements
. . . .” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a
‘probability requirement,’ but 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 wellpleaded 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)).
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As noted above, Plaintiff’s complaint names 147 Defendants and is merely a litany
of conclusory assertions and complaints of harassment by prison employees. However,
Having conducted the review 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 Judge
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