Smith #153086 v. Heyns 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

RAYMOND SMITH,
Plaintiff,

Case No. 2:13-cv-16

v.

Honorable Gordon J. Quist

DANIEL HEYNS,
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 without immediate 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.
Factual Allegations
Plaintiff Raymond Smith, a state prisoner currently confined at the Chippewa
Correctional Facility (URF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against

Defendants MDOC Director Daniel Heyns, Warden Jeffrey Woods, Deputy Warden Thomas
Mackie, Deputy Warden Connie Horton, Supervisor R. Russell, Assistant Resident Unit Supervisor
Kenneth D. Duston, Grievance Coordinator M. McLean, Corrections Officer S. Smith, Grievance
Specialist Jody Washington, and Resident Unit Manager Ronald Bailey.
Plaintiff alleges that on November 15, 2011, he submitted a $12.19 disbursement
authorization / catalog order for a LED book light from Access Catalog by placing his order in the
Resident Unit Manager / Assistant Resident Unit Supervisor kite box. Defendant Duston authorized
the order on November 16, 2011, and sent it to the business office for processing. On December 2,
2011, Plaintiff received his trust account statement showing a debit of $12.19 paid to Access.
Plaintiff claims that after several other inmates received similar orders, he had still not received his
book light. Consequently, on January 11, 2012, Plaintiff wrote a “confirm order” kite to the
Business Office, who replied that the order had been processed on November 16, 2011, and that
Plaintiff should contact the vendor. Plaintiff never received his book light and filed a grievance
regarding the issue. Plaintiff claims that the signature on the back of the book light receipt does not
match his signature. Plaintiff attaches a copy of the step II grievance response by Defendant Mackie
as Exhibit P, which states:
This respondent followed up with Property Officer Smith, who
confirmed the information provided at Step I. Records indicate
grievant received his book light. If grievant can provide otherwise,
he needs to take it up with the vendor. There has been no evidence
presented to support grievant’s allegation that he didn’t receive his
book light as records indicate otherwise. No violation of policy
exists.
(Plaintiff’s Exhibit P, docket #1-1, p. 32 of 44.)
On December 5, 2011, Defendant Duston prepared a “Parole Eligibility / Lifer
Review” report on Plaintiff, but omitted the fact that Plaintiff had completed some college and
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vocational training. Under the “Institutional Adjustment” section, Defendant Duston reported to the
Parole Board that Plaintiff received a security reclassification, but failed to state that this was not
because of any misconduct on Plaintiff’s part. Plaintiff states that the reason for the reclassification
was that he and other inmates of the now-closed Riverside Correctional Facility, which was level
II, were moved to the Michigan Reformatory, a level II and IV facility. Because there weren’t
enough level II beds available at the Michigan Reformatory to accommodate all of the incoming
level II prisoners, Plaintiff was housed in the level IV unit until level II beds became available.
Plaintiff states that he did not receive a misconduct with subsequent top-lock until 2009. When
Plaintiff complained that the report was inaccurate, Defendant Duston told him to file a grievance.
However, Plaintiff states that because the report had already been sent, a grievance would not have
corrected the situation. Plaintiff claims that Defendant Duston was the step I respondent on
Plaintiff’s grievance regarding the book light in violation of MDOC Policy Directive 03.02.130 ¶
U.
Plaintiff claims that the deprivation of his book light and the refusal to refund the cost
of the light violated his due process rights. Plaintiff claims that Defendants violated MDOC policy
when they failed to provide him with a timely step I grievance response, or with a hearing regarding
the deprivation of his book light. Plaintiff states that he believes that Defendant Duston’s conduct
was motivated by “personal animus” based on a prior altercation with Plaintiff, thus his conduct
violated equal protection and constituted retaliation.
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.
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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)).
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).
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Plaintiff claims that the fact that he paid for a book light which he never received
violated 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

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
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
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specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480.
In this case, as noted above, Plaintiff filed a grievance asserting that he had not
received his light and was seeking a return of the purchase price. The step II response indicates that
Defendant Smith checked the property room record, which showed that Plaintiff had received the
book light. Plaintiff was advised that he should take the issue up with the vendor. It does not appear
that Plaintiff took any further action to obtain reimbursement. 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. Accordingly, Plaintiff’s due process claim will be
dismissed.
Plaintiff also claims that Defendants’ conduct violated MDOC policy. These due
process claims merit little discussion. Claims under § 1983 may not be based upon alleged
violations of state law, nor may federal courts order state officials to comply with their own law.
See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Plaintiff does not enjoy
any federally protected liberty or property interest in state procedure. See Olim v. Wakinekona, 461
U.S. 238, 250 (1983); Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994).
Plaintiff asserts that Defendant Duston’s conduct constituted retaliation because it
was motivated by “personal animus” based on a prior altercation he had with Plaintiff. 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
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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)). In this case, Plaintiff fails
to allege any facts showing that he engaged in protected conduct prior to the deprivation of his book
light or that Defendant Duston’s actions were motivated by a desire to retaliate against Plaintiff on
that basis. Therefore, Plaintiff’s retaliation claim is properly dismissed.
Plaintiff also asserts that Defendants violated his equal protection rights because
other prisoners received their catalog orders. The Equal Protection Clause commands that no state
shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST.
amend. XIV, § 1. A state practice generally will not require strict scrutiny unless it interferes with
a fundamental right or discriminates against a suspect class of individuals. Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 312 (1976). Plaintiff does not suggest that he is a member of a suspect class,
and “prisoners are not considered a suspect class for purposes of equal protection litigation.”
Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir. 2005); see also Wilson v. Yaklich, 148 F.3d 596, 604
(6th Cir.1998). In addition, Plaintiff’s allegations do not implicate a fundamental right.
Because neither a fundamental right nor a suspect class is at issue, Plaintiff’s claim
is reviewed under the rational basis standard. Club Italia Soccer & Sports Org., Inc. v. Charter Twp.
of Shelby, 470 F.3d 286, 298 (6th Cir. 2006). “Under rational basis scrutiny, government action
amounts to a constitutional violation only if it ‘is so unrelated to the achievement of any
combination of legitimate purposes that the court can only conclude that the government’s actions
were irrational.’” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005)). To
prove his equal protection claim, Plaintiff must demonstrate “intentional and arbitrary
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discrimination” by the state; that is, he must demonstrate that he “has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff has failed to allege
any specific facts supporting such a finding. Therefore, Plaintiff’s equal protection claim is properly
dismissed.
As noted above, Plaintiff claims that Defendant Duston prepared a misleading
“Parole Eligibility / Lifer Review” report on December 5, 2011, omitting the fact that Plaintiff had
completed some college and vocational training and failing to explain that Plaintiff’s reclassification
while at the Michigan Reformatory was not due to any misconduct on his part. To establish a
procedural due process violation, a plaintiff must prove that (1) he was deprived of a protected
liberty or property interest, and (2) such deprivation occurred without the requisite due process of
law. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir.
2006); see also Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006). Plaintiff fails to raise
a claim of constitutional magnitude because he has no liberty interest in being released on parole.
There is no constitutional or inherent right to be conditionally released before the expiration of a
prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
Although a state may establish a parole system, it has no duty to do so; thus, the presence of a parole
system by itself does not give rise to a constitutionally protected liberty interest in parole release.
Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present
only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State
Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir. 1994) (en banc), the Sixth
Circuit, noting “the broad powers of the Michigan authorities to deny parole,” held that the
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Michigan system does not create a liberty interest in parole. In a recent published decision, the Sixth
Circuit reiterated the continuing validity of Sweeton. See Crump v. Lafler, 657 F.3d 393, 404 (6th
Cir. 2011). In Crump, the court held that the adoption of specific parole guidelines since Sweeton
does not lead to the conclusion that parole release is mandated upon reaching a high probability of
parole. See id.; see also Carnes v. Engler, 76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth
Circuit has rejected the argument that the Due Process Clause is implicated when changes to parole
procedures and practices have resulted in incarcerations that exceed the subjective expectation of
the sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the
Michigan Supreme Court has recognized that there exists no liberty interest in parole under the
Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999).
Plaintiff is serving a life sentence for first-degree murder. See http://mdocweb.
state.mi.us/otis2/otis2profile.aspx?mdocNumber=153086. Plaintiff has no reasonable expectation
of liberty. The discretionary parole system in Michigan holds out “no more than a mere hope that
the benefit will be obtained.” Greenholtz, 442 U.S. at 11. The Michigan Parole Board’s failure or
refusal to consider Plaintiff for parole, therefore, implicates no federal right. In the absence of a
liberty interest, Plaintiff fails to state a claim for a violation of his procedural due process rights.
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
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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: August 20, 2013

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

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