Debardelaben #240689 v. McKeon 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-439
Honorable R. Allan Edgar
RICHARD M. McKEON 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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants McKeon and Bauman. The Court also will dismiss Plaintiff’s
due process claim arising from the seizure of personal hygiene items from his cell. The Court will
serve Plaintiff’s Fourteenth Amendment, First Amendment, RLUIPA and retaliation claims against
Defendants Swajanen and Konrad arising from his removal from the Kosher Meal Program.
Plaintiff is incarcerated in the Kinross Correctional Facility, but the events giving rise
to his complaint occurred at the Alger Correctional Facility (ACF).
In his pro se amended complaint
(docket #9), Plaintiff sues the following ACF staff: Storekeeper Heidi Swajanen, Resident Unit
Manager C. Konrad and Warden Catherine Bauman.
Plaintiff also sues former Michigan
Department of Corrections (MDOC) Director Richard M. McKeon.
Plaintiff alleges that during a cell shakedown on September 10, 2010, one therapeutic
coal tar shampoo and five Softee bargamont blue hair grease were removed from his personal
property. Plaintiff asked an officer why the items were seized and was told that Defendant Swajanen
said the items had to be thrown away because they were not in their original containers. Plaintiff
alleges that he did not receive a contraband removal notice or an administrative hearing, in violation
of MDOC policy and his due process rights. Plaintiff filed a grievance against Defendant Swajanen
on September 12, 2010, and was interviewed by Sergeant Rondeau regarding the grievance on
October 5, 2010. After his Step I grievance was denied, Plaintiff appealed to Steps II and III, which
were denied by Defendants Bauman and McKeon, respectively.
On October 5, 2010, the same day Plaintiff was interviewed on the grievance against
Swajanen, Plaintiff also was interviewed by Assistant Resident Unit Supervisor Phillipson on a
Notice of Intent to conduct an administrative hearing to remove Plaintiff from the Kosher Meal
Program because Plaintiff had purchased non-kosher food items from the prison store. Plaintiff
claims that he had ordered the food items three months earlier and was unaware that the food items
were not kosher because the store list does not indicate whether food items are kosher. Plaintiff
contends that Swajanen was trying to get him removed from the Kosher Meal Program in retaliation
for the grievance Plaintiff filed against her regarding the personal hygiene items that were seized
from his cell. He further argues that it was unfair to remove him from the Kosher Meal Program
when he had no way of knowing that the items he ordered from the prison store were not kosher.
Plaintiff filed a grievance against Swajanen concerning his removal from the Kosher Meal Program,
which was denied at Step II by Defendant Bauman and at Step II by Defendant McKeon. Following
an administrative hearing on October 15, 2010, Defendant Konrad removed Plaintiff from the
Kosher Meal Program. During the hearing, Plaintiff accused Swajanen of punishing him for filing
a grievance against her by getting him removed from the Kosher Meal Program. According to
Plaintiff, Konrad replied, “You should have thought about that before you wrote the grievance.”
(Am. Compl., 7, Page ID#79.)
Plaintiff asserts violations of his Fourteenth Amendment due process rights, his First
Amendment right to practice his Jewish religion, and his rights under the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a). Plaintiff also alleges that
Defendants violated his First Amendment rights by retaliating against him for filing a grievance.
Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive 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, 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); 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 (1994).
Plaintiff alleges that Defendants Bauman and McKeon denied his Step II and III
grievance appeals and failed to protect him from the unconstitutional conduct of their subordinates.
Government officials may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior or vicarious liability. Iqbal, 129 S. Ct. at 1948; 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 (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 575; 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, 129 S. Ct. at 1948. Plaintiff has failed to allege that Defendants Bauman and
McKeon engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim
Seizure of Personal Hygiene Items
Plaintiff claims that several personal hygiene items were improperly seized from his
cell and thrown away in violation of MDOC policy and his due process rights. Plaintiff’s due
process claim is barred by the doctrine of 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 post-deprivation 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
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
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
To the extent Plaintiff alleges a violation of MDOC policy, Defendant’s alleged
failure to comply with an administrative rule or policy does not itself rise to the level of a
constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Smith v. Freland,
954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992);
McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to
follow policy directive does not rise to the level of a constitutional violation because policy directive
does not create a protectable liberty interest). Section 1983 is addressed to remedying violations of
federal law, not state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d
at 580-81. Accordingly, Plaintiff’s due process claim will be dismissed.
At this stage of the proceedings, the Court finds Plaintiff’s allegations sufficient to
warrant service of Plaintiff’s Fourteenth Amendment, First Amendment and RLUIPA claims against
Defendants Swajanen and Konrad arising from his removal from the Kosher Meal Program. See
Colvin v. Caruso, 605 F.3d 282 (6th Cir. 2010). Plaintiff’s allegations also are sufficient to warrant
service of his retaliation claim against Defendants Swajanen and Konrad. See Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999) (en banc).
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Defendants McKeon and Bauman 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 also will
dismiss Plaintiff’s due process claim arising from the seizure of personal hygiene items from his cell.
The Court will serve Plaintiff’s Fourteenth Amendment, First Amendment, RLUIPA and retaliation
claims against Defendants Swajanen and Konrad arising from his removal from the Kosher Meal
An Order consistent with this Opinion will be entered.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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