Benson #152327 v. Osborn et al

Filing 5

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

TROBY BENSON,
Plaintiff,
v.

Case No. 2:12-cv-447
Honorable Gordon J. Quist

BYRON OSBORN, et al.,
Defendants.
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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. 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 McLean, Swift, Stapleton, Russell, and Heyns. The Court will
serve the complaint against Defendants Osborn and Durant.
Discussion
I.

Factual allegations

Plaintiff Troby Benson, a state prisoner currently confined at the Ojibway
Correctional Facility (OCF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Corrections Officer Byron Osborn, Hearing Investigator Dan Durant, Step I Grievance

Coordinator Mike McLean, Resident Unit Manager Terri Swift, Hearings Administrator Richard B.
Stapleton, Manager Grievance Section Richard D. Russell, and MDOC Director Daniel H. Heyns.
In Plaintiff’s complaint, he alleges that on November 4, 2009, he was transferred
from one general population unit in the Chippewa Correctional Facility (URF) to another unit, after
being charged with fighting. On November 5, 2009, Plaintiff was summoned to the property room
to receive his property, which had been packed by prison staff. Plaintiff states that prison staff failed
to inventory his property and list it on a personal property receipt when they packed it. Nor did staff
use property seals on his state-issue duffel bag and personal footlocker. When the property arrived
at Plaintiff’s new unit, Property Room Officer Helne unpacked and itemized the property on a
receipt entitled “ride-in.” In addition, Plaintiff discovered that his food and hygiene items were all
missing and that his t.v. had been damaged, as had a considerable amount of Plaintiff’s legal
property, including a civil rights complaint that Plaintiff had been working on regarding an assault
he had received in November of 2006 at the hands of his roommate.
On November 16, 2009, following a hearing, Plaintiff was sentenced to segregation.
Plaintiff wrote to the Assistant Resident Unit Supervisor of the segregation unit informing him that
he had a deadline of November 26, 2009, to file a civil rights action and requesting access to his
legal property so that he could finish it and send it to Federal Court in a timely manner. Plaintiff
also filed a grievance regarding this issue. In response to the grievance, Assistant Resident Unit
Supervisor Hagelee stated that after Plaintiff was involved in a fight on November 4, 2009, he was
handcuffed and taken to the control center. An officer was immediately sent to secure Plaintiff’s
property and found that Plaintiff’s television was missing from his area of control. The television
was found on the floor in the corner of one of the bathrooms and Plaintiff’s legal work was found
in a “shambles.” Mr. Hagelee further stated:
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It appears that [Plaintiff] failed to safeguard his property prior to
being involved in a fight in the Delta Unit bathroom on 11/4/09. His
TV was stolen by unknown prisoners and discarded on the floor of
the 2 side bathroom before staff could secure it and whatever store
goods he did not receive were also stolen from his cube. Staff packed
his property in accordance with 04.07.112, the damage to his TV was
done from being stolen and tossed on the tiled unit bathroom floor,
not from being improperly packed up. Staff did have to pack his
legal paperwork tightly to make it fit but felt it was important that we
try and get him all his legal paperwork if possible.
In conclusion staff attempted to secure [Plaintiff’s] property as
quickly as possible after the fight to pack it up. Per PD 04.07.112 the
Department will not assume responsibility for lost, damaged, or
stolen property. Unknown prisoner’s [sic] removed items from
[Plaintiff’s] area of control before staff could secure it. The officers
involved in the packup have been reminded of the need to properly
inventory the property before the prisoner is transferred to the East
or West side now that we are a combined facility.
(Docket #1-2, p. 21 of 35.)
On November 17, 2009, Plaintiff was served with a notice of intent to conduct an
administrative hearing, which asserted that Plaintiff was in possession of excess legal property that
would not fit into his duffel or footlocker. The property receipt completed by Defendant Osborn
indicated that one box full of excess legal work had been seized as excess property / contraband.
Plaintiff claims that he did not receive copies of the property receipt or of the contraband removal
record until he was released from segregation on December 6, 2009, in violation of MDOC policy.
On November 18, 2009, Plaintiff told Defendant Durant that he needed access to his
legal work so that he could file a civil rights complaint before the statute of limitations ran out on
November 26, 2009. Defendant Durant told Plaintiff that he wanted him to go through his legal
work and take out everything that did not relate to pending litigation. Defendant Durant indicated
that an officer would take him to his property in a few minutes. Plaintiff was subsequently taken
to a holding cell where he found his legal property tightly packed in a television box. Plaintiff went
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through his property, but was unable to find his civil rights complaint. Plaintiff told Defendant
Durant that the complaint must be in his other legal property, which had been packed up by
Defendant Osborn. Defendant Durant told Plaintiff that in order to obtain access to that property,
he would have to get permission from the segregation unit personnel. Plaintiff gave Defendant
Durant a list of the materials he needed to make his court deadline, as well as a request for a
statement from property room officer Helne regarding the manner in which Plaintiff’s property had
arrived on the unit. Plaintiff asked when the hearing on his property would be held and Defendant
Durant told him November 24, 2009.
On November 25, 2009, Plaintiff filed a grievance complaining about his inability
to access his civil rights complaint in a timely manner. This grievance was rejected by Defendant
McLean as non-grievable because it related to the timeliness of Plaintiff’s hearing on the notice of
intent. On December 6, 2009, Plaintiff was released from punitive segregation and his property was
returned to him. Upon unpacking his property, Plaintiff discovered that his civil rights action was
missing, as was his application to proceed in forma pauperis. Plaintiff filed a grievance on this
issue, asserting that Defendant Osborn must have destroyed his legal property. On January 4, 2010,
Defendant Swift responded by stating that there was no evidence to substantiate Plaintiff’s claims.
Plaintiff’s step II and III appeals were denied by Defendants Russell and McLean.
In the response to the step I grievance, Defendant Swift summarized Plaintiff’s
complaint as follows:
[Plaintiff] complains that on 11/16/09 his property was packed by
[Resident Unit Officer] Osborn. Upon release from detention 20
days later he discovered that his copy of the Pack-up slip was still
stapled to the duffle bag along with a contraband removal slip for
excess legal work, and numerous items were not listed and or were
missing. He alleges that [Resident Unit Officer] Osborn disposed of
the missing items without authorization.
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(Docket #1-2, p. 25 of 35.)
Defendant Swift summarized the investigation information as follows:
[Plaintiff] was interviewed 12/21/09 at 1335 hours. When asked
what evidence he had that suggested that the [Resident Unit Officer]
destroyed any of his property he replied that one of his razors in the
bag had been broken and that [Resident Unit Officer] Osborn is
known for doing this. Again he was asked what form of proof he had
to base this allegation on. He replied that he had none. He was then
asked where his bunkie was following the incident that sent
[Plaintiff] to segregation, and could his bunkie have taken some of
the alleged missing property. He admitted that it could have been his
bunkie but still feels it was the officer.
[Resident Unit Officer] Osborn was interviewed and states that he
packed all of the property that was in the prisoner’s area of control,
and also did a Notice of Intent to Conduct an Administrative Hearing
for excess legal property. He attached the prisoner’s copy of the
forms to the duffle bag and forwarded the property to segregation.
(Docket #1-2, p. 25 of 35.)
Defendant Swift summarized the applicable policy, 04.07.112 (B), which states:
Employees shall take reasonable precautions to protect the property
of prisoners; however, responsibility for safeguarding property rests
with the prisoner. Prisoners shall store property in their cell or room
in accordance with institutional procedures. The Department will not
assume responsibility for lost, stolen, or damaged property. If the
prisoner incurs a loss through no fault of his/her own, s/he may
petition the institution's Prisoner Benefit Fund (PBF), as provided in
PD 04.02.110 “Prisoner Benefit Fund”, or request reimbursement
through the State Administrative Board, in accordance with OP
03.02.130-A “State Administrative Board Prisoner Property
Reimbursement”.
Defendant Swift further noted that in order to receive reimbursement for a loss of property, a
prisoner must show that he did not contribute to the loss, that the loss was caused by staff, that the
prisoner owned the property, and that the property was in the sole control of the MDOC when lost
or damaged. As noted above, Defendant Swift concluded that Plaintiff could not meet this burden.
(Docket #1-2, p. 25 of 35.)
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Plaintiff claims that Defendants’ conduct violated his rights under the First and
Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages, as well as declaratory
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 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 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)).

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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).
Initially, the court notes that Defendants McLean, Swift, Stapleton, Russell, and
Heyns were not involved in Plaintiff’s loss of legal property and that their only roles in this action
involve the denial of administrative grievances or the failure to act. 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); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir. 1982).
See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 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
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
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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 McLean, Swift, Stapleton,
Russell, and Heyns were personally involved in the activity which forms the basis of his claim. The
only roles that Defendants McLean, Swift, Stapleton, Russell, and Heyns had in this action involve
the denial of administrative grievances or the failure to act. Defendants McLean, Swift, Stapleton,
Russell, and Heyns cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999). Accordingly, the Court concludes that Plaintiff’s claims against
Defendants McLean, Swift, Stapleton, Russell, and Heyns are properly dismissed for lack of
personal involvement.
Throughout Plaintiff’s complaint, he alleges that he did not receive procedural
protections provided by MDOC policy regarding the packing of his property and the decision that
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he had excess legal property. No due process interest can be derived from a statute or regulation that
merely establishes procedural requirements. Olim v. Wakinekona, 461 U.S. 238, 250 (1983); Bills
v. Henderson, 631 F.2d 1287, 1297-99 (6th Cir. 1980). In addition, the procedural due process
mandated by the Constitution cannot be altered by or defined by, and therefore is not necessarily the
same as, the procedures required by state law. See Vitek v. Jones, 445 U.S. 480, 490-91 (1980).
Thus, so long as the Plaintiff received that process which was due under the Constitution, the fact
that the State may have failed to comply with its own procedure does not state a cause of action
under 42 U.S.C. § 1983. Id.; see also Walker v. Mintzes, 771 F.2d 920, 933-934 (6th Cir. 1985).
Furthermore, Plaintiff’s complaint, as well as the attached documents, establish that
Plaintiff received due process of law. In all cases where a person stands to be deprived of his life,
liberty or property, he is entitled to due process of law. This due process of law gives the person
the opportunity to convince an unbiased decision maker that, for example, he has been wrongly or
falsely accused or that the evidence against him is false. The Due Process Clause does not guarantee
that the procedure will produce a correct decision. “It must be remembered that even if a state
decision does deprive an individual of life, [liberty], or property, and even if that decision is
erroneous, it does not necessarily follow that the decision violated that individual’s right to due
process.” Martinez v. California, 444 U.S. 277, 284, n.9 (1980). “[T]he deprivation by state action
of a constitutionally protected interest in “life, liberty or property” is not in itself unconstitutional;
what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon
v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original). Further, an inmate has no right to
counsel in disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 569-70 (1974); Franklin
v. Aycock, 795 F.2d 1253, 1263 (6th Cir. 1986). In this case, Plaintiff claims that his hearing on the
notice of intent that he had excess legal property was not held in a timely manner. However,
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Plaintiff does not allege that he was denied a hearing altogether, or that he was unable to present
evidence during the hearing. In addition, in his attempt to seek redress for the loss of his property,
Plaintiff was able to present evidence and present his claim. The fact that Plaintiff was unsuccessful
does not mean that he did not receive due process. Therefore, this claim is properly dismissed.
Moreover, 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

OF

CORR., Policy Directive

04.07.112, ¶ B (effective Jul. 9, 2012). 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
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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 personal property.
Plaintiff makes a conclusory assertion that Defendants’ conduct was motivated by
a desire to retaliate against him. However, Plaintiff fails to allege any specific facts in support of
this claim. 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
motive.
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). Because Plaintiff’s
retaliation claims are entirely conclusory, they are properly dismissed.
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Plaintiff further claims that Defendants’ conduct violated his equal protection rights.
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to
any person within its jurisdiction the equal protection of the laws,” which is essentially a direction
that all persons similarly situated should be treated alike. U.S. CONST ., amend. XIV; City of
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). In this case, Plaintiff fails to
allege that he was treated differently than other similarly situated persons. Therefore, his equal
protection claims are properly dismissed.
Finally, Plaintiff claims that Defendants Osborn and Durant acted in a way that
prevented him from filing his meritorious lawsuit in a timely manner. The court notes that
Plaintiff’s access to courts claims against Defendants Osborn and Durant are not clearly frivolous
and may not be dismissed upon initial screening.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants McLean, Swift, Stapleton, Russell, and Heyns 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).
In addition, Plaintiff’s due process, equal protection and retaliation claims against Defendants
Osborn and Durant are also dismissed. The Court will serve the complaint against Defendants
Osborn and Durant with regard to Plaintiff’s access to courts claims.
An Order consistent with this Opinion will be entered.

Dated: July 15, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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