Dayson #213123 v. Caruso et al

Filing 7

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

JAMES MICHAEL DAYSON,
Plaintiff,

Case No. 2:12-cv-451

v.

Honorable Robert Holmes Bell

PATRICIA CARUSO, et al.,
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.

Factual Allegations
Plaintiff James Michael Dayson, a state prisoner currently confined to the Kinross
Correctional Facility (KCF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Patricia Caruso, Catherine Bauman, Mary Berghuis, Tom Birkett, Raymond Booker,
David Borgh, Sherry Burt, Michael Curley, Cindi Curtin, Shirlee Harry, Bonita Hoffner, Paul Klee,
Duncan MacLaren, Ken McKee, Robert Napel, Carmen Palmer, Mitch Perry, John Prelesnik, Lloyd
Rapelje, Joan Roggenbuck, Kenneth Romanowski, Steve Rivard, Debra Scott, Willie Smith, Linda
Tribley, Millicent Warren, Heidi Washington, Jeff Woods, and Unknown Parties.
In his complaint, Plaintiff asserts that in this action, he represents the interests of all
state prisoners incarcerated by the Michigan Department of Corrections (MDOC) and lists numerous
instances of wrongdoing by Defendants. Plaintiff states that he was a prisoner representative on the
Warden’s Forum at Lakeland Correctional Facility, but that when he began to question the propriety
of paying unskilled storekeepers $80,000 to $90,000 a year, he was transferred to KCF. Plaintiff
asserts that Defendant Wardens have encouraged the unfair practice of issuing false misconduct
tickets in order to eliminate effective prisoner representatives, as well as the approval of immediate
“emergency” transfers of prisoner representatives who inquire about past Prisoner Benefit Fund
appropriations.
Plaintiff contends that the practice in the MDOC of allowing double-bunking of
prisoners in segregation and Level IV facilities has resulted in an increase in prisoner on prisoner
crime, as well as on suicides. Plaintiff claims that the Wardens of Saginaw and Brooks Correctional
Facilities are responsible for scalding water temperature in the showers at their facilities and that
Defendant Caruso is responsible for negotiating a contract with a satellite television company that
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charges exorbitant rates for basic services. Plaintiff states that Defendant Caruso failed to solicit
input from inmates, who are obligated to pay for the multi-million dollar contract. Plaintiff also
asserts that inmates who do not even own television sets must pay for cable service.
Plaintiff states that Defendant Caruso approved Policy Directive 03.02.130, which
provides for prisoner / parolee grievances. Plaintiff states that prison officials target prisoners who
file grievances writing fake misconduct tickets on them, having them placed in segregation,
confiscating their property, and transferring them to other prisons. Because of this conduct, most
prisoners have been “chilled” in filing grievances. Plaintiff further contends that prisoners who file
grievances never obtain any relief because they are discriminated against at every level.
Plaintiff allege that KCF has been expanded far beyond its original capacity, and that
G-Unit currently houses 158 prisoners, who are forced to wait in a line to use four toilet stalls.
Plaintiff states that units B-1, C-1, D-1, and E-1 each house 84 prisoners, who are forced to share
two shower stalls. The competition among inmates for the limited sanitary provisions causes
conflicts.
Finally, Plaintiff alleges that he is an American Indian and that his religious
preference is “Native American Traditional Ways” (NAIW). Consequently, Plaintiff requires the
use of tobacco for prayer, as well as an abalone shell, sage, cedar, sweetgrass, and matches to ignite
the smudging ingredients. Defendant Caruso disallowed tobacco in all correctional facilities in
January 2009, so that the possession of tobacco now results in a major misconduct conviction and
placement in segregation. Plaintiff states that some Wardens allow tobacco for religious ceremonial
purposes, while others will only allow a religious volunteer to bring tobacco into the facility. In
addition, some Wardens will allow religious property, while others will not. While Plaintiff was
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confined at the Lakeland Correctional Facility, he was allowed to possess a Native American flute,
but when he was transferred to KCF, the flute was confiscated. Plaintiff received a hearing on the
flute, and was told that it was prohibited at KCF. Plaintiff was instructed to have the flute sent home
or it would be destroyed.
Plaintiff states that Defendant’s conduct constitutes a violation of the First, Eighth,
and Fourteenth Amendments. Plaintiff seeks nominal, compensatory and punitive damages, as well
as equitable relief.
Discussion
I.

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
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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)).
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 claims that his Eighth Amendment rights, and the rights of all MDOC
prisoners, are being violated by overcrowding at KCF and other prisons, double-bunking of
prisoners, and scalding water temperatures in the showers at Saginaw and Brooks Correctional
Facilities. However, Plaintiff fails to allege any specific facts regarding his personal situation in
relation to this claim. In Rhodes v. Chapman, 452 U.S. 337 (1981), the Supreme Court held that
prison overcrowding, standing alone, does not violate the Eighth Amendment. Rather, Plaintiff bears
the burden of showing that crowded conditions led to independent deprivations of essential food,
medical care, sanitation, or other necessities. 452 U.S. at 348. Plaintiff's bare allegations of
overcrowding fail to meet this standard. Therefore, his Eighth Amendment claims are properly
dismissed.

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Plaintiff claims that the MDOC’s contract with a provide for cable television
somehow violates his due process rights, asserting that he and other prisoners are required to pay for
this usage. However, Plaintiff fails to allege any specific facts in support of this assertion. The
elements of a procedural due process claim are: (1) a life, liberty, or property interest requiring
protection under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate
process. Women’s Med. Pro’'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). “Without a
protected liberty or property interest, there can be no federal procedural due process claim.”
Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 579 (1972)). Because Plaintiff’s allegations do not support
a finding that he had a protected interest relating to the MDOC’s cable television contract, this claim
is properly dismissed.
Plaintiff also claims that the deprivation of his Native American flute when he was
transferred to KCF violated his due process rights. Plaintiff concedes that he received a hearing
regarding the confiscation of his flute. 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;
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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). Therefore, it is clear that Plaintiff received due process of law.
Plaintiff further claims that the deprivation of his flute violated his First Amendment
free exercise right. While “lawful incarceration brings about the necessary withdrawal or limitation
of many privileges and rights,” inmates clearly retain the First Amendment protection to freely
exercise their religion. See O’Lone v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). To
establish that this right has been violated, Plaintiff must establish that: (1) the belief or practice he
seeks to protect is religious within his own “scheme of things,” (2) that his belief is sincerely held,
and (3) Defendant’s behavior infringes upon this practice or belief. Kent v. Johnson, 821 F.2d 1220,
1224-25 (6th Cir. 1987); see also, Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (same);
Bakr v. Johnson, No. 95-2348,1997 WL 428903, at *2 (6th Cir. July 30, 1997) (noting that
“sincerely held religious beliefs require accommodation by prison officials”).
While inmates retain First Amendment rights to the free exercise of religion, prison
officials may impinge on these constitutional rights where their actions are “reasonably related to
legitimate penological interests.” See Flagner, 241 F.3d at 483 (quoting Turner v. Safley, 482 U.S.
78, 89 (1987)). To determine whether a prison official’s actions are reasonably related to a
legitimate penological interest, the Court must assess the official’s actions by reference to the
following factors:
1.

does there exist a valid, rational connection between the prison regulation and the
legitimate governmental interest put forward to justify it;

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2.

are there alternative means of exercising the right that remain open to prison inmates;

3.

the impact that accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources generally; and

4.

whether there are ready alternatives available that fully accommodate the prisoner’s
rights at de minimis cost to valid penological interests.

Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-91).
Failure to satisfy the first factor renders the regulation or action infirm, without regard
to the remaining three factors. Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-90) (“a
regulation cannot be sustained where the logical connection between the regulation and the asserted
goal is so remote as to render the policy arbitrary or irrational”). If the first factor is satisfied, the
remaining three factors are considered and balanced together; however, they are “not necessarily
weighed evenly,” but instead represent “guidelines” by which the court can assess whether the policy
or action at issue is reasonably related to a legitimate penological interest. Flagner, 241 F.3d at 484
(citations omitted). It should further be noted that the Turner standard is “not a ‘least restrictive
alternative’ test” requiring prison officials “to set up and then shoot down every conceivable
alternative method of accommodating the claimant’s constitutional complaint.” Instead, the issue
is simply whether the policy or action at issue is reasonably related to a legitimate penological
interest. Id.
The court notes that Plaintiff makes no allegations that the flute was religious within
his own scheme of things. Plaintiff does not allege that the removal of the flute in any way infringed
upon his sincerely held religious practice or belief. Therefore, Plaintiff has not alleged the manner
in which his First Amendment right to the free exercise of religion was impaired. Because Plaintiff

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has not alleged that the flute was necessary for or part of the practice of his religion, he fails to state
a claim for a violation of his First Amendment rights.
Moreover, despite Plaintiff’s assertions that restrictions on tobacco, herbs, and other
ingredients of smudging exist in the MDOC, he fails to allege that such restrictions directly affected
his right to freely practice his religion. Therefore, Plaintiff’s First Amendment claim regarding these
restrictions is properly dismissed.
Plaintiff claims that he was a prisoner representative on the Warden’s Forum at
Lakeland Correctional Facility, but that when he began to question the propriety of paying unskilled
storekeepers $80,000 to $90,000 a year, he was transferred to KCF. Plaintiff asserts that KCF is the
most violent facility in the state, but fails to allege any specific facts in support of this assertion.
Plaintiff contends that this transfer was retaliatory. 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)).
The court assumes for the sake of argument that Plaintiff’s participation in the
Warden’s Forum is constitutionally protected conduct for which a prisoner cannot be subjected to
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retaliation. Plaintiff, however, cannot show that his transfer to KCF was an adverse action. In Hill
v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010), the Sixth Circuit court held that transfer to a lock-down
unit at another facility is more than just a transfer, and is more akin to the transfer in Siggers-El v.
Barlow, 412 F.3d 693, 701-02 (6th Cir. 2005), in which the consequence of transfer would affect the
prisoner’s ability to pay his lawyer, thereby affecting his access to the courts. However, the transfer
in this case was a lateral transfer. Plaintiff’s conclusory assertion that the prison population at KCF
is more violent than Lakeland is insufficient to show that the transfer constituted an adverse action.
Finally, the court notes that 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.

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Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). In this case,
Plaintiff’s assertion that his transfer was retaliatory is entirely conclusory. Therefore, this claim is
properly dismissed.
With regard to Plaintiff’s claim that the prisoners are commonly retaliated against for
filing grievances is both vague and conclusory. Therefore, this claim does not merit consideration
by the court.
Conclusion
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.

Dated: July 17, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE